Appeal from decree of Orphans' Court of Allegheny County, No. 3318-A of 1959, in re estate of Michael L. Benedum, also known as M. L. Benedum and Michael Late Benedum, deceased.
C. Donald Gates, Jr., with him Brandt, Riester, Brandt & Malone, for appellant.
Harold R. Schmidt, with him Henry McC. Ingram, Robert S. Newkirk, and Rose, Schmidt and Dixon, and McDonald, Sanders, Wynn, Ginsburg, Phillips & Maddox, for appellee.
William A. Meyer, guardian and trustee ad litem, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen concurs in the result. Mr. Justice Musmanno took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in this concurring opinion.
The question involved: Is the adopted daughter of a deceased nephew, who was one of testator's life tenants,
included or excluded in a gift of income to the nephew's living children and living issue of a deceased child, where the testator in his 1948 will provided that "the words ' child', 'children' and 'issue' . . . shall include only issue of the body of my niece and nephews "? From a Decree of the Orphans' Court, which held that the adopted daughter was not entitled to a share of the income under this testator's will, the adopted daughter took this appeal.
Testator Michael L. Benedum died on July 30, 1959. He left a very lengthy and very detailed will dated July 5, 1948*fn1 which was obviously and undoubtedly prepared by an attorney. When he executed his will, testator had a wife and sisters*fn2 whom he provided for, as well as nephews and nieces. The bequest here challenged consists of a 1/12th share which testator directed to be held in trust for his nephew, Darwin Benedum, for life, with gifts after his death to persons and upon terms hereinafter set forth. Darwin died on January 24, 1966, survived by a widow and a son and the present appellant, Frances Benedum Williams, who was adopted by her stepfather, Darwin Benedum, on July 3, 1941. With respect to the trust for Darwin, testator pertinently provided: "(4) . . . Subject to the foregoing annuity in favor of my sisters, one-half of which shall be borne proportionately by such separate trusts, my Trustees shall pay quarterly the net income from such separate trusts, and shall distribute the principal thereof as follows: (a) My said Trustees shall pay to the nephew . . . for whom such part is held in trust, the net income therefrom so long as such nephew . . . is living at the time of each such payment. If such nephew . . . is not living at any such time, my said
Trustees shall then and thereafter pay to the surviving spouse of the deceased nephew . . ., provided such spouse is qualified, as aforesaid, and so long as such spouse is living and remains unmarried at the time of each such payment, one-half of the income therefrom so long as there is living a child or children or issue*fn3 of any deceased child or children of the deceased nephew . . ., and all of the income when there is no such living child or children or issue. All income not paid to said qualified surviving spouse, if such there be, shall be paid to such child or equally to such of the children of the deceased nephew or niece and the issue of any deceased child or children, per stirpes and not per capita, as are living at the time for each such payment of income.
"(b) Upon the death or remarriage of the qualified surviving spouse, if there be such . . ., the trust shall terminate, and the assets thereof shall be paid and distributed to the child or in equal shares to the children then living and living issue, per stirpes and not per capita, of any deceased ...