Appeals from decree of Court of Common Pleas, Orphans' Court Division, of Philadelphia, No. 1508 of 1936, in case of estate of Adolph L. Tafel.
Edward L. Snitzer, with him Leon I. Mesirov, and Mesirov, Gelman, Jaffe & Levin, for appellants.
H. Ober Hess and James Francis Lawler, with them Frederic W. Clark, Bruce L. Castor, Ballard, Spahr, Andrews & Ingersoll, and Ostroff & Lawler, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Manderino concurs in the result. Mr. Justice Eagen and Mr. Justice O'Brien dissent. Mr. Justice Pomeroy took no part in the consideration of this case.
On July 7, 1935, Adolph Tafel (testator) died. On February 2, 1935, he had executed his will in which he created a trust. Under that trust, testator's widow was to receive the income during her life and, upon her death, the corpus of the trust was to be divided in four equal shares for the benefit of his four named children, each child to receive the income from one such share during his or her life and, upon each child's death, the corpus of the share of such child so dying to "go to such of his or her children as may then be living,
and to the issue then living of such of them as may be dead." Absent children or issue of children, gifts over were provided.
Testator's widow died March 23, 1945, and Adolph Tafel, testator's only son, died January 17, 1970, survived by two adopted children, Pamela Tafel (now Pamela Gabell) and Anthony Tafel (appellants). These children -- minors when adopted -- were both adopted after the testator's death. Pamela having been adopted six years and Anthony having been adopted nine years after testator's death.
The sole issue presented on these two appeals is whether appellants, as adopted children, are entitled to take under testator's testamentary trust as "children" of testator's deceased son, Adolph Tafel. The Orphans' Court Division of the Court of Common Pleas of Philadelphia held that appellants did not take as "children" and awarded the share of the corpus (the income from which had been paid to Adolph Tafel during his lifetime) to testator's trustee to be added to the shares of testator's three surviving daughters. From that decree the instant appeals were taken. The court below reached its conclusion in reliance upon Section 16(b) of the Wills Act of 1917*fn1 and Holton Estate, 399 Pa. 241, 159 A.2d 883 (1960). The appellants now urge that we reconsider our prior case law, including Holton, and our prior interpretation of Section 16(b) which excluded adopted children from taking if the adoptions took place after execution of the will.*fn2
Appellants correctly contend that, under our prior case law, in the absence of any testamentary language demonstrating the intent of the testator, our courts have presumed that the testator, in a will making a gift or bequest to a person or persons other than the testator's "child" or "children", intended to exclude adopted children. Appellants urge that we reevaluate our case law, change our rule and hold that, in the absence of any testamentary language demonstrating the intent of the testator, it should be presumed that the testator intended to include adopted children. The legislative guide line of construction enunciated in Section 16(b) of the 1917 Wills Act, supra, is applicable "unless a contrary intention appears" in the will. Section 16(b) refers solely to adoptions by a person or persons other than the testator, i.e., known as the ...