Appeal from decree of Orphans' Court of Allegheny County, No. 976 A-4 of 1950, in re deed of trust of Henry C. Fownes, known as "The Amy Fownes Schaeffer Trust".
James M. Arensberg, with him Patterson, Crawford, Arensberg & Dunn, for appellant.
Thomas W. Pomeroy, Jr., Edward A. Craig, III, and Clyde W. Armstrong, with them Kirkpatrick, Pomeroy, Lockhart & Johnson, and Thorp, Reed & Armstrong, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno and Mr. Justice Jones join in this dissenting opinion.
The question involved is this:
Is the adopted son of one of the children of the life tenant entitled to a share of income under this inter vivos trust?
The Orphans' Court*fn1 held that the adopted son of Settlor's deceased grandson was not "issue" within the meaning of the trust and hence was not entitled to any income thereunder.
On December 7, 1933, Henry C. Fownes, as Settlor-Grantor, and his two sons as Trustees, executed an irrevocable deed of trust. The trust was composed of stocks and bonds*fn2 which the Settlor owned and transferred
to the Trustees. In the second paragraph of the trust, Settlor pertinently provided as follows:
"(a) The Trustees shall pay . . . the net income of the trust estate to Amy Fownes Schaeffer, daughter of Grantor, during her life.
"(b) Upon the death of said Amy Fownes Schaeffer the Trustees shall pay . . . the net income of the trust estate, share and share alike, to the children of said Amy Fownes Schaeffer who survive her and to the issue per stirpes of any child who may have predeceased her or not having ...