Appeal, No. 63, Jan. T., 1962, from decree of Orphans' Court of Montgomery County, No. 84691, in re estate of Dorothea W. Walton, deceased. Decree affirmed.
David H. W. Dohan and Paul C. Wagner, with them Stanley B. Cooper, and Waters, Fleer, Cooper & Gallager, and Pepper, Hamilton & Scheetz, for appellants.
Ralph S. Snyder, Deputy Attorney General, with him Edward J. Ozorowski, Special Assistant Attorney General, and David Stahl, Attorney General, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Dorothea Walton, daughter of S. Davis Walton, died December 19, 1957, unmarried and without issue. She disposed of her entire estate absolutely by will dated August 14, 1956. The Orphans' Court held that the Commonwealth was entitled to a collateral inheritance tax on two-thirds of the principal of her father's residuary trust estate, because at the time of her death Dorothea had been seized and possessed of a vested remainder interest therein as a result of an intestacy. Dorothea Walton's executors appealed.
S. Davis Walton died on September 6, 1910, a resident of Philadelphia County. He left his residuary estate in trust to pay out of the net income, an annuity to his wife, Agnes W. Walton, if she remained his widow, with the balance of income to his daughter, Dorothea Walton, upon certain trusts not herein pertinent. He then provided: "If my wife, Agnes W. Walton, should not remain my widow, then upon her remarriage, the income of my estate shall be equally divided between my wife, ... and my daughter, Dorothea Walton [who was then five years of age], for and during the term of their natural lives.
"Upon and after the death of my said wife,*fn1 it is my will that the income*fn2 from my entire estate shall be given unto my daughter, Dorothea Walton, for... her ... life, and upon her death, the same to be divided equally between her children who may be living at the time of her death, share and share alike, the issue of any deceased child taking their parent's share.
"Upon the marriage of my daughter, Dorothea Walton, I authorize my trustees to pay unto her from the principal of my said estate, the sum of Twenty-five Thousand Dollars ($25,000.00) at the time of her marriage.
"If my daughter, Dorothea Walton, should die before my wife without leaving issue her surviving, then the whole income of my estate shall be given unto my wife for ... life ..., and upon the death of my said wife, ... I order and direct my trustees to pay over the principal of my said estate to my sister, Jennie D. Walton, absolutely.
"If my said daughter, Dorothea Walton, should die before my wife, leaving issue her surviving, then such
issue shall receive the same share of the income as would have been received by her mother had she been living."
Walton gave his executors and impliedly his trustees a power of sale and powers of investment. He also created a spendthrift trust and a separate use trust for his wife and for Dorothea.
Upon the death of Walton's daughter Dorothea, the trustee of Walton's estate filed an account in the Orphans' Court of Philadelphia County. That Court in adjudicating the trustee's account said:*fn3
"The trust has now terminated in whole by reason of the death of Dorothea W. Walton, last surviving life tenant, which occurred ...