Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Philadelphia, Oct. T., 1926, No. 3812, in case of estate of Augustus E. Jessup, deceased.
J. Peter Williams, with him J. Freedley Hunsicker, and Drinker, Biddle & Reath, for appellants.
William H. S. Wells, with him Guy T. Moore, and Saul, Ewing, Remick & Saul, for appellees.
Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen dissents. Mr. Justice Jones took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Pomeroy.
The question involved is whether the gift of the remainder in the trust for Jenny vested at the death of the testator or at the death of Jenny.
The question of whether a bequest or devise created a vested interest (or a vested subject-to-be-divested interest), or a contingent interest has perplexed and vexed the Courts for countless years. This question arises most frequently in wills or trusts which, like the present, use the word "surviving," and particularly when (as here) "surviving" is used in different context in the same will.
The testator, August E. Jessup, died at Livorno, Italy,*fn1 on October 16, 1925, leaving a will dated April 14, 1925. At the time of his death, he was survived (1) by two sons, Alfred C. Jessup and Alexander M. Jessup, who were children of his marriage to his first wife (Lady Mildred Marion Bowes Lyon), and (2) by two daughters, Mary Jessup Hood and Olive Jessup Howell, who were children of his marriage to his second wife (Hyacinth Mary Cavendish Bentinck), and (3) by his third wife, Jenny. Testator had no children by Jenny. Testator's first two wives predeceased him. Both his sons predeceased Jenny, who had remarried after his death and died on January 14, 1968. Alexander died in 1931, survived by one son, who died in 1942. Alfred died in 1953, childless. Both of testator's daughters are still living.
At the time of his first marriage, the testator and his first wife executed an Indenture of Marriage Settlement dated June 10, 1890. Among the provisions of this marriage settlement was one which reserved to the testator a power of appointment over certain trust property to any wife or issue he might have. In the Second Paragraph of his will, the testator made specific reference to this reserved power of appointment, and thus provided:
"Now, therefore, I do hereby exercise the power of appointment vested in me under the terms of the said marriage settlement, and from the corpus of the fund held thereunder at my disposal at the time of my death, I give and bequeath*fn2 as follows: [$5,000 to each of his children and $5,000 to his wife, free of all taxes.]
" All the rest, residue and remainder of the said fund, I give, devise and bequeath unto my Trustees hereinafter named, to divide the same into thirty equal parts or shares, and to hold the same in Trust, that is to say:*fn3 Ten (10) of such parts or shares for the benefit of my son Alfred C. Jessup; five (5) shares for the benefit of my son Alexander M. Jessup; five (5) shares for the benefit of my daughter Olive C. L. Jessup; five (5) shares for the benefit of my daughter Mary V. Jessup, and five (5) shares for the benefit of my wife Jenny J. Shaw, under separate trusts, to pay over the income therefrom unto my said wife and [my] children by any previous marriage respectively for life. In Trust, upon the death of each child, to assign, transfer, pay over and divide the principal of such [ child's ]
"Fifth -- All the rest, residue and remainder of my own personal estate, of whatsoever nature and wheresoever situated, I direct shall be divided into thirty equal parts or shares, and those equal parts or shares I give, devise, and bequeath ten (10) unto my son Alfred C. Jessup; five (5) unto my son Alexander M. Jessup; five (5) unto my daughter Mary V. Jessup; five (5) unto ...