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decided: July 7, 1975.



Lewis H. Van Dusen, Jr., Philadelphia, for appellants.

William H. S. Wells, Herbert S. Riband, Jr., Philadelphia, for appellees, the Fidelity Bank, and others, Trustees U/W, and others.

Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Nix, J., filed a concurring opinion. Eagen, J., concurs in the result. Roberts, J., filed a dissenting opinion in which Manderino, J., joined. Pomeroy, J., did not participate in the consideration or decision of this case.

Author: Jones

[ 463 Pa. Page 96]


Charlemagne Tower, a resident of Philadelphia, died on July 24, 1889. He left a will dated May 21, 1889, by which he put his residuary estate in trust for the benefit of his family. The trust is to run for a period of twenty-one years beyond the death of the survivor of a group comprising testator's five children and five grandchildren who were living at his death.

Originally, the trust income was payable to the testator's widow and children, all of whom died some years ago, and the income is now payable to any living grandchildren and to spouses and descendants of deceased grandchildren.

The present controversy concerns the share of Geoffrey Tower, who was a grandson of the testator. Geoffrey died in 1957 and was survived by a widow and four children -- two natural children and two adopted children. The widow's name was Annette Tripp Tower; the natural children are Charlemagne Tower, IV, and Helen Tripp Tower Brunet; the adopted children are Annette Tower Ragsdale and Tripp Tower, the appellants. The adopted children were Annette's (Geoffrey's wife's) children by a prior marriage. In 1941, Geoffrey legally adopted them as his own.

At the time of his death Geoffrey was receiving a 5/48ths share of income of the trust. One-fourth of this became payable to his widow for the period from his death in 1957 to her death in 1959, because under his grandfather's will he had a power to so appoint and he exercised it. The other three-fourths of Geoffrey's 5/48ths share, and all of it since his widow's death in 1959, is payable to his children. The sole issue is whether this income is payable to all four of Geoffrey's children or only to his two natural children.

[ 463 Pa. Page 97]

After Geoffrey's death the trustees filed an account, which was audited in 1960. At that time, the trustees were unaware of the existence of the two adopted children and therefore did not raise the question whether those children were entitled to participate in Geoffrey's share of income. The Orphans' Court thus awarded the whole share -- less only the part payable to the widow -- to the two natural children. Thereafter, the adopted children, being advised of the problem, asked the Orphans' Court to open the adjudication, and in January 1962 the court entered a decree granting a review for the limited purpose of determining what rights, if any, the adopted children may have in the trust income. Thereafter, Judge Lefever filed a supplemental adjudication in which he ruled that the adopted children were not entitled to take. Tower Estate, 27 Pa.D. & C.2d 114 (O.C.Phila. 1962). The case then went to the court en banc on the adopted children's exceptions and in due course that court filed an opinion and decree in which it dismissed the exceptions and confirmed the supplemental adjudication, 27 Pa.D. & C.2d at 128. The adopted children took an appeal from that decision to this Court. We affirmed, 410 Pa. 389, 189 A.2d 870 (1963) (hereinafter Tower I).

In 1972, this Court filed its decision in Tafel Estate, 449 Pa. 442, 296 A.2d 797, which altered the law in Pennsylvania by allowing adopted children to share in testamentary bequests on an equal basis with natural children. On the basis of the new rule of law announced in Tafel, the adopted children of Geoffrey Tower contend that they are now entitled to participate prospectively in their adoptive father's former share of income.

Testator was an astute, wealthy businessman. His will was clearly and carefully drawn by an obviously learned scrivener. He attempted to leave no detail to chance. He set up a trust to pay the income so long as permitted under the rule against perpetuities, on a per

[ 463 Pa. Page 98]

    stirpital basis, and at the expiration of this period to divide the corpus per capita "among all my lineal descendants then living." Adopted children's rights of inheritance are determined by the statutes in force at the time the inheritance became effective, and, when there is a will, by the terms of the will itself: Storb Appeal, 400 Pa. 567, 163 A.2d 302 (1960). The meaning of the words used by testator must be determined from the context of the will and the law in force in 1889 when the will became effective: Collins Estate, 393 Pa. 195, 142 A.2d 178 (1958).

"The controlling element in the construction of every will is of course the intention of the testat[or]. Mulert Estate, 360 Pa. 356, 61 A.2d 841 [1948]. This intent must be ascertained by a consideration of the entire will which is to be read in the light of the surrounding circumstances at the time it was written.*fn1 March Estate, 357 Pa. 216, 53 A.2d 606 [1947]. Since there is no uncertainty or ambiguity in the will, the meaning must be ascertained from the language therein. It is not what this Court thinks [he] might or would have said, or even what the Court thinks [he] meant to say, but what is the clear meaning of [his] words."

Bigony Estate, 397 Pa. 102, 104, 152 A.2d 901, 903 (1959).

Testator identified his children and grandchildren by name in his will. He then provided that during their lives his children were to receive income. He then specified that the share of income of a child who died was to be "divided among the children and issue of deceased children" of such child. He made similar provision for his grandchildren and more remote lineal descendants.

Our task in Tower I was to determine the intent of the testator as reflected in his constant references throughout

[ 463 Pa. Page 99]

    the will to "children," "grandchildren," "issue" and "lineal descendants." These we approvingly adopted the reasoning of the Orphans' Court that such words were "words of blood" and that, therefore, the testator's language was clear and unambiguous in expressing his intent that persons not in the biological bloodline of the testator were not to participate in the testamentary trust. But in Tafel Estate, supra, we eliminated the judicial doctrine that, absent a clear intent to provide for adopted children of beneficiaries other than the testator, the testator is presumed to have excluded such adopted children. We substituted for that doctrine the presumption that such adopted children are included, unless the language of the will clearly demonstrated an intent to exclude them. Thus, the threshold question here is whether or not Tafel is controlling in the instant case. In other words, does the language in Charlemagne Tower's will present a clear and unambiguous intent to exclude adopted children so that the inclusive presumption of Tafel is inapplicable?

In Tower I, this Court based its conclusion that the adopted children were not to participate in the trust on the language used ...

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