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decided: October 30, 1975.



Joseph E. Lastowka, Jr., Kassab, Cherry & Archbold, Media, for appellant.

George J. Hauptfuhrer, Jr., Norman E. Donoghue, II, Dechert, Price & Rhoads, Philadelphia, for appellee, Stephanie Tracy Culbertson Kerns.

John A. M. McCarthy, Philadelphia, for appellee, First Penna. Banking & Trust Co., Trustee and Margaret T. Ritteman, Substituted Trustee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., filed a concurring opinion. Nix, J., concurs in the result.

Author: Roberts

[ 464 Pa. Page 302]


In November 1944, Dr. Stephen Tracy (settlor) established a revocable inter vivos trust. It provided that income be paid to settlor and his wife for the remainder of their lives; after their death, the income was to be paid, in equal shares, to settlor's children, Margaret Tracy Ritteman and Stephen Tracy, Jr. Upon the death of either child, "the share of such child shall be paid over to his or her issue per stirpes." The question presented in this case is whether the natural daughter of Stephen Tracy, Jr. (Stephen Jr.), who was adopted by one unrelated to settlor in 1951, is entitled to share in the distribution to the "issue" of Stephen Jr. The orphans' court concluded that she is entitled to share in that distribution and this appeal ensued.*fn1 We affirm.

Most of the facts in this case were stipulated. A daughter Stephanie (the appellee) was born to Stephen Jr., and his then wife, Cora Hepburn Tracy, on December 25, 1938. Stephen Jr. and Cora were divorced on August 21, 1942, and Cora took custody of Stephanie. On January 9, 1943, Stephen Jr. married his second wife, Thelma Budd Tracy. On November 28, 1944, settlor executed

[ 464 Pa. Page 303]

    the deed of trust now before us.*fn2 Stephen Tracy IV (appellant) was born to Stephen Jr. and Thelma on December 28, 1945. Stephanie's mother Cora married her second husband, Harlow Culbertson on May 30, 1946.

On April 14, 1949, settlor was declared incompetent and a guardian was appointed for his estate. From at least this time until his death on February 22, 1956, he lacked the capacity validly to amend or revoke the deed of trust. On June 21, 1951, Stephanie was adopted by her stepfather, Harlow Culbertson, with the consent of Stephen Jr. All life estates in the half of the trust allotted to the issue of Stephen Jr. terminated with his death on March 14, 1972.

The corporate fiduciary filed an account and requested instructions whether, by reason of Stephanie's adoption, she was precluded from taking under the trust as "issue" of Stephen Jr. Stephanie (now, by marriage, Stephanie Kerns) appeared before the orphans' court to assert her right to participate in the distribution and Stephen IV, the only other child of Stephen Jr., appeared to oppose her participation.

The orphans' court received, subject to an objection concerning its relevance, testimony from Stephanie and her mother regarding Stephanie's relationship with the settlor, her grandfather.*fn3 The orphans' court concluded that this evidence was inadmissible because irrelevant and therefore disregarded it. Nevertheless, we believe that we may consider certain facts as admitted.*fn4 At various times, even after her parents were divorced in 1942

[ 464 Pa. Page 304]

    and prior to the execution of the deed of trust in 1945,*fn5 Stephanie received Christmas and birthday gifts from settlor. From 1942 to 1945 settlor paid the tuition for Stephanie's attendance at nursery and elementary school. During the period between the divorce of Stephanie's parents and the execution of the deed of trust, settlor entertained Stephanie as a visitor in his home from 10 to 12 times per year. While at their summer home in the summers of 1944, 1945, and 1946, settlor and his wife frequently picked up Stephanie at her family's nearby cottage for visits with them.

The orphans' court concluded, without reference to this evidence of an affectionate relationship between Stephanie and her grandfather, that the provision for the "issue" of Stephen Jr. clearly and unambiguously included Stephanie, notwithstanding her adoption by Harlow Culbertson in 1951. From the decree directing that she be permitted to share in the distribution of the portion of the corpus allocated to such "issue" Stephen IV appeals, urging that only he is entitled to take under that provision of the deed of trust.

The principles applicable to the construction of trust instruments are essentially the same as those used in the construction of wills.*fn6 The intent of the settlor, if not contrary to law, must prevail.*fn7 Canons of construction

[ 464 Pa. Page 305]

    may be applied if the intent of the settlor is otherwise unclear.*fn8 However, as we said in Chambers' Estate, 438 Pa. 22, 24, 263 A.2d 746, 747 (1970):

"[A]rtificial rules of testamentary construction have been legislatively and judicially created merely to aid in what is always the primary goal -- to ascertain and to give effect to the testamentary purposes of the testator. Therefore, where the testator's actual intent can be ascertained, such intent must prevail over any artificially-deduced 'intent' which the rules of construction might dictate."

The pertinent provision of the deed of trust provides that, after the death of the settlor and his wife, Stephen Jr. was to receive one-half of the trust income. At his death, his share "shall be paid over to his issue per stirpes." Had settlor, his wife, and Stephen Jr. all died before Stephanie's adoption in 1951, there would be no question that she would have been entitled to participate in this distribution as the daughter of Stephen Jr. The terms of the trust instrument clearly identify Stephanie as one of the objects of settlor's bounty. It is unlikely that settlor would have desired to exclude Stephanie from benefits under the trust merely because his son gave his consent to her adoption by her stepfather. Absent any evidence of an intent to exclude Stephanie because

[ 464 Pa. Page 306]

    of an unanticipated adoption, and given the clear evidence in the trust instrument of an intent to include her, we are not prepared to apply legal rules of construction to thwart settlor's intent. Our conclusion is reinforced by the basic equality of treatment adopted by settlor for his descendants of the same generation.

In Taylor Estate, 357 Pa. 120, 53 A.2d 136 (1947), a testimony trust was established providing income for life to the testatrix' brother. Upon the death of the brother, the corpus was to be distributed among his "issue." The brother had five children, two of whom predeceased him. Of the two children who predeceased the brother, each left a child. One of these grandchildren of testatrix' brother was adopted, before the death of the brother, by a person unrelated to testatrix or her brother. When the brother died, the question arose whether this grandchild, adopted "out" of the family of testatrix' brother, was entitled to participate in the distribution as "issue" of the brother. This Court held that the adoptee was entitled to share in the distribution notwithstanding his adoption by a stranger to his grandfather's blood.

We find that settlor's intent was to include Stephanie as "issue" of Stephen Jr. Further, to the extent that legal principles are needed to construe this deed of trust, we find Taylor Estate to be persuasive authority for including Stephanie in the trust distribution.

Decree affirmed. Each party pay own costs.

JONES, Chief Justice (concurring).

I feel compelled to concur in the result reached today by the majority but solely on the basis that the law governing the rights of adopted children at the time the settlor executed the instant deed of trust mandates this result.

[ 464 Pa. Page 307]

Kerns would be precluded from taking any share of her natural father's estate by virtue of her adoption prior to the death of the settlor. The Act reads as follows:

"Adopted children. In construing a will making a devise or bequest to a person or persons described by relationship to the testator or to another, any person adopted before the death of the testator shall be considered the child of his adopting parent or parents and not the child of his natural parents. . . ." (Emphasis added).

For the reasons set forth above, I concur in the result.

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