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.
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
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 ...