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decided: November 11, 1969.


Appeal from decree of Orphans' Court of Allegheny County, No. 10562 of 1942, in re estate of Mary Morton McKinney.


Robert L. Campbell, for appellant.

George Wasser, trustee ad litem, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell concurs in the result.

Author: Jones

[ 435 Pa. Page 610]

Mary Morton McKinney (testatrix) died, testate, February 18, 1896. Under the terms of her will she created a trust whereunder the income beneficiaries were to be her seven surviving children and her husband, who also survived her. The beneficiaries were to receive the income for life, and, upon the death of the last surviving child, the trust was to be terminated and the corpus distributed in accordance with the following language from the will: "It is my will that this arrangement [the trust] shall continue during the natural lives of all my children. When all the children are deceased, the estate is to be divided equally among their direct heirs. Should any child die without issue, the portion of such child shall be divided equally between the direct heirs of the other children." (Emphasis supplied). Testatrix' children died in the following order and circumstances: Evaline McKinney died on October 27, 1896, without issue (no "direct heirs"); Mary Hamilton died on April 7, 1913, leaving a daughter, Wilma Hamilton, who died on July 23, 1913 (one "direct heir"); Carrie Stearns died on January 6, 1954, without issue (no "direct heirs"); James McKinney died on August 18, 1957, leaving two sons, James W. McKinney and John S. McKinney (two "direct heirs"); Margaret McFarland died on March 8, 1959, leaving one son surviving her, Kenneth T. H. McFarland, Jr. (one "direct heir"); Martha Swift died on November 3, 1962, leaving two sons, Robert S. Swift and Thomas H. Swift (two "direct heirs"); Birdella Hettler died on April 8, 1968, without issue (no "direct heirs"). The death of Birdella Hettler terminated the trust. The instant litigation involves the distribution of the trust fund pursuant to the above-quoted language from the testatrix' will.

[ 435 Pa. Page 611]

The Orphans' Court of Allegheny County divided the trust fund into six shares for distribution, including the Estate of Wilma Hamilton as one of the distributees. The appellant, Kenneth T. H. McFarland, Jr., claims that this inclusion was improper because the will should have been read to incorporate a requirement that a "direct heir" must survive the testatrix' last surviving child in order to share in the distribution.

Appellant first urges that a prior decision of this Court interpreting this same will, McKinney's Estate, 260 Pa. 123, 103 A. 590 (1918), referred to the remainder interest as contingent and that this should have some weight now. However, the Estate of Wilma Hamilton was not a party to that appeal, the question of when and in whom the remainder interest would vest was not at issue, and, since five of the seven children of Mary Morton McKinney were still alive at the time, the remainder interests were in fact still contingent (since the "direct heirs" could not be determined until all the children had died). This prior decision when cast in its proper prospective is neither significant nor controlling.

Appellant next argues that the present statutory law would prevent any distribution to the Estate of Wilma Grace Hamilton, citing the Act of June 29, 1923, P. L. 914, 21 P.S. § 11, the Wills Act of 1947, 20 P.S. § 180.14, and the Estates Act of 1947, 20 P.S. § 301.14. Although admitting that, because these statutes have no retroactive application, they are not directly pertinent, it is nevertheless claimed that the theory behind them should be applied. It is sufficient to point out that appellant is correct in stating that these statutes do not apply retroactively. Moreover, under the law as of the date of testatrix' death, the Estate of Wilma Hamilton would be entitled to share in

[ 435 Pa. Page 612]

    the distribution. See: Milligan's Estate, 244 Pa. 161, 90 A. 552 (1914); Dutilh's Estate, 286 Pa. 389, 133 A. 548 (1926).

Finally, appellant points out the cardinal principle of testamentary construction is that the intent of testatrix should prevail (Houston Estate, 414 Pa. 579, 201 A.2d 592 (1964)) and would have us consider that the "Pay and Divide Rule" was applicable at the time of testatrix' death. Whether or not that Rule was applicable in 1896, it was abolished in Dickson Estate, 396 Pa. 371, 152 A.2d 680 ...

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