Joseph T. Labrum, Jr., Guy G. deFuria, Francis T. Sbandi, Fronefield, deFuria & Petrikin, Media, for appellant.
Stephen M. Feldman, Donald C. Cofsky, Feldman & Feldman, Philadelphia, for appellee, Ann Bell Shoustal (nee Ann Bell).
W. Donald Sparks, Eckell Sparks, Vadino, Auerbach & Monte, Media, for appellee as guardian and trustee ad litem.
Donald H. Pugh, Clarence D. Bell, Jr., Media, for appellees, trustees under the will of Samuel R. Bell.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result. Nix, J., filed a dissenting opinion. Roberts, J., filed a dissenting opinion in which Manderino, J., joined.
This is the third of a trilogy of cases which attempt to relitigate the rights of adopted children to portions of trust funds, which rights had previously been adjudicated adversely to the adopted children by decisions of this Court.
Samuel Bell died on January 29, 1937, leaving his Last Will and Testament dated August 22, 1934. The pertinent sections of the will provided for identical trusts for each of his six children except that the three sons were to receive distribution of principal at age thirty-five while the daughters were to receive no distribution of principal. On the death of the life tenant daughters the principal was to be distributed to the "children of her" living at the death of the life tenant or, if none, to the
"issue" then living of any deceased child of the life tenant. Emma Bell Baxter, one of the daughters of the testator, died on June 16, 1965. Mrs. Baxter had no natural children and was survived only by her legally adopted son, Edward A. Baxter, the present appellant. Edward was adopted before the death of the testator.
In Bell Estate, 439 Pa. 433, 267 A.2d 862 (1970) (hereinafter Bell I), we affirmed per curiam the Orphans' Court decree which denied to Edward Baxter his adoptive mother's share of the principal. In that appeal, the question of the intent of Samuel R. Bell was before this Court. Our per curiam affirmance in Bell I must be interpreted by implication to hold either (1) the intent of Samuel Bell was clear to the effect that adopted children were to be excluded from the distributive scheme of the testamentary trust, or (2) that the testator expressed no intent in regard to adopted children and that, therefore, the now defunct presumption arose that testator intended to exclude adopted children from the distributive scheme.
Bell I may now be erroneous in light of our decision in Tafel Estate, 449 Pa. 442, 296 A.2d 797 (1972), wherein it was held that absent an express intention in the testator's will to exclude adopted children, this Court will presume that the testator meant to treat adopted children in the same manner as natural children. After the Tafel decision, Edward A. Baxter again petitioned the Orphans' Court for a review of its earlier decision in the same matter, alleging errors of law which would permit review pursuant to Section 3521 of the Probate, Estates and Fiduciaries Code, 20 Pa.S. § 3521, since his petition was filed ...