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GRIMM ESTATE (03/18/71)

decided: March 18, 1971.

GRIMM ESTATE


Appeals from decree of Court of Common Pleas of Venango County, Jan. T., 1968, No. 52, in re estate of Daniel Grimm, deceased; Appeal of Burns et al.; Appeal of Koos.

COUNSEL

James S. Crawford, III, with him William J. McFate, Thorp, Reed & Armstrong, and McFate, McFate & McFate, for appellants.

Harry W. Gent, Jr., with him William J. M. Thompson, and Gent, Daniels and Thompson, for appellant.

Ira B. Coldren, Jr., and Thomas Thatcher, with them Robert M. Dale, Ralph K. Barclay, Jr., Smith, Heath, Smith & O'Haire, Dale & Woodard, and Coldren & Adams, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen took no part in the decision of this case.

Author: Jones

[ 442 Pa. Page 129]

The issue (narrow in scope but complex in nature) presented on these appeals is: under the will and two codicils thereto of Daniel Grimm (testator), should distribution of the principal of a testamentary trust be made per stirpes or per capita among the several classes of testator's descendants. The court below -- the Court of Common Pleas, Orphans' Court Division, of Venango County -- decreed distribution per capita among testator's grandchildren and per stirpes among testator's great-grandchildren.

Testator, a Venango County resident, died June 1, 1928, survived by his wife and seven children.*fn1 Testator left a will dated May 2, 1901, a codicil dated September 15, 1922 (first codicil) and a codicil dated February, 1924 (second codicil), all of which testamentary writings were probated.

Insofar as presently pertinent, the will provided: (1) a bequest to testator's wife of household goods; (2) a gift of a fund -- consisting of testator's homestead, certain securities and the income arising from the proceeds of certain insurance policies -- in trust, to provide a $5,000 annual income to testator's wife; (3) a direction to the trustees to distribute any of the wife's unused annual income as well as the income from the residue of the estate*fn2 among all testator's living

[ 442 Pa. Page 130]

    children and all the children of any deceased child or children, per capita, until the death of testator's last child; (4) a direction to the trustees, upon the death of testator's wife, to divide equally the fund which had generated the income for the wife between all his then living children and all the then living children of any deceased child or children per capita, "so that the portion of each individual distributee . . . shall be the same, whether the distributee be child or grandchild" of testator; (5) the trustees were further directed that, upon the death of testator's last child and after his last grandchild, living when the last child died, reached the age of twenty-one years, to distribute the principal equally among the then living grandchildren per capita. The tenth paragraph of the will provided: "No one shall take anything by representation under this will, except the law make such provision in contravention of the intent of this will."

In 1901, at the time testator executed his will, he had a wife, seven children and one grandchild. It is clear beyond question that, when testator made his will, he contemplated a per capita, not a per stirpes, distribution of both income and principal.

On September 15, 1922, testator executed the first codicil to the will:

"First. Paragraph Six (6)*fn3 of my said Will and the Distribution therein made, I now revoke, and instead thereof, I direct that the Distribution therein made shall be per stirpes and not per capita, that is that 6. After the Trustee shall have made sure annually that my said wife, Carrie F. Grimm, has had her

[ 442 Pa. Page 131]

    annual income, they shall annually distribute the residue of the income from the Estate equally among all my children who shall be living at the time of my decease and the child or children of any children of mine who may then be deceased, but the child or children of any child or [sic] mine who may be then deceased, only to take and have such part or share as his, her or their deceased parent would have taken if he or she had been living at the time of my decease.

"Second. Paragraph Seven (7)*fn4 of my said Will and the Distribution therein made, I now revoke, and instead thereof, I direct that the Distribution therein made shall be per stirpes and not per capita, that is that 7. Upon the death of my said wife, Carrie F. Grimm, the homestead and funds set apart for her use shall thereupon forthwith be divided equally among all my children who shall be living at the time of my decease and the child or children of any children of mine who may be then deceased, but the child or children of any child or [sic] mine who may be then deceased only to take and have such part or share as is, [sic] her or their deceased parent would have taken if he or she had been living at the time of my decease.

"Third. Paragraph Eight (8)*fn5 of my said Will and Distribution therein made, I now revoke, and instead thereof, I direct that the distribution therein

[ 442 Pa. Page 132]

    made shall be per stirpes and not per capita, that is that 8. The income of the residue of the Estate shall be distributed quarterly among all my children who shall be living at the time of my decease and the child or children of any children of mine who may be then deceased, but the child or children of any child of mine who may be then deceased, only to take and have such part or share as his, her, or their deceased parent would have taken if he or she had been living at the time of my decease.

"Fourth. Paragraph Ten (10)*fn6 of my said Will and the provision therein made, I now revoke, and instead thereof, I direct that all my Grandchildren shall take by representation, that is per stirpes and not per capita."

When this first codicil was executed, testator's wife and seven children were still living and there were eleven grandchildren with a twelfth soon to be born.

On an unspecified date in February, 1924, testator executed the second codicil:

"First. Paragraph Six (6) of my said will and distribution therein made, I now revoke, and instead thereof, I direct that the distribution therein made shall be per stirpes and not per capita, that is to say: 6. After the Trustees shall have made sure annually that my said wife, Carrie F. Grimm, has had her annual income, they shall annually distribute the residue of the income among all my then living children and the then living descendants of any children of mine who may then be deceased, but the descendants of any child of mine who may ...


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