Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Philadelphia, No. 208 of 1941, in re estate of Edward C. Lilley, appeal of Natalie Allen.
S. Jonathan Emerson, with him J. Jackson Eaton, III, James G. Watt, Montgomery, McCracken, Walker & Rhoads, and Butz, Hudders & Tallman, for appellant.
Francis M. Richards, Jr., with him James R. Ledwith, and Pepper, Hamilton & Scheetz, for appellee.
Bell, C. J., Cohen, Eagen, O'Brien and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones and Mr. Justice Roberts took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case.
Edward C. Lilley died November 6, 1936. Under his will dated January 3, 1936, he left his residuary estate in trust. In this appeal, we are called upon to determine, in the light of all the language of the will, the meaning of the following language which appears as part of the Eleventh paragraph of his will: ". . . I have at the time of the execution of this my Last Will
one grandchild, Margaret Ann Lilley, and my wife has one grandchild by a former marriage, Dorothy Adele Allen. At the death of the last surviving child of mine and [of the last surviving child]*fn1 of my wife Kathryn C. Lilley, I direct that . . . my residuary estate shall be divided into as many equal parts as there may be grandchildren then living, including my wife's grandchild Dorothy Adele Allen."
Testator's first wife, who died in 1893, bore him three children, Doris, Clifford and Lyman. Each of his children survived him; the last survivor was Doris, who died March 14, 1969. In 1907, testator married Kathryn Allen, a widow who had a son by a previous marriage, Richard M. Allen. Kathryn died on June 27, 1943. Richard is still living. No children were born of testator's marriage to Kathryn Allen.
The testator had only one grandchild, Margaret Ann Lilley (now Mrs. Ann Mason). Margaret was born, as above noted, before testator drew his will, and was his only grandchild at the time of his death and at the death of his last surviving child. During testator's lifetime, his second wife, Kathryn, had one (and only one) grandchild, Dorothy Adele Allen (now Mrs. Dorothy Wales). As above mentioned, she was Kathryn's granddaughter by her first marriage.
In 1939, almost three years after testator's death, Richard Allen, who was Kathryn's son by her first marriage, divorced his wife and married his second wife, Ruth. They had a child, Natalie Allen, who was born in September 1943 and is the present appellant.
Testator left a personal estate of $175,000, which, for some undisclosed reason, became $108,000 at the death of his last surviving child (Doris) in 1969. The ...