Bruce D. Lombardo, Philadelphia, for appellant.
Annis K. S. Delamere, John S. Pierson, Richard M. Gillis, Jr., Philadelphia, for appellees.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., did not participate in the decision of this case. Eagen, C. J., dissents.
We hold today that where a testator has not clearly expressed an intention to limit inheritance under his will to individuals of blood descent, it is presumed that he intended to include adopted children as beneficiaries of a bequest to "issue."
On December 26, 1935, testator, John Sykes, executed a will in which he bequeathed part of his estate to his niece, Annis Kershaw Sykes, and the residue to Annis Kershaw Sykes and Girard Trust Company in trust for the benefit of Annis Kershaw Sykes for her life. The will empowered Annis Kershaw Sykes to withdraw in her discretion up to fifty per cent of the corpus of the trust for "her comforts and needs." The instrument further provided that Annis Kershaw Sykes
"may . . . appoint, limiting the persons to whom my said niece may appoint, however, to blood relatives of mine or of my said niece, Annis Kershaw Sykes; and in the event that my said niece shall fail to appoint as hereinbefore authorized, to pay over and distribute such corpus or principal unto the issue of my said niece, per stirpes and not per capita." (emphasis added)
Annis Kershaw Sykes married in 1940 and remained married until her death on March 22, 1974. No children were born of that marriage. On June 1, 1943, however, she and her husband adopted Annis Kershaw Sykes Pierson 2d, a one month old girl and, in 1946, John Sykes Pierson, a six year old boy. John Sykes died on August 16, 1942.
Upon the death of Annis Kershaw Sykes, Benjamin P. Sykes, an intestate heir of testator, objected to distribution of the corpus of the trust to the adopted children of Annis Kershaw Sykes, on the ground that adopted children were not "issue" as designated in the will. The orphans' court division of the court of common pleas dismissed this objection and ordered distribution of the corpus to the adopted children. We affirm.*fn1
"It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator." Hamilton Estate, 454 Pa. 495, 498, 312 A.2d 373, 374 (1973); accord, Blough Estate, 474 Pa. 177, 378 A.2d 276 (1977); Hill Estate, 432 Pa. 269, 247 A.2d 606 (1968). To ascertain this intent, a court examines the words of the instrument and, if necessary, the scheme of distribution, the circumstances surrounding execution of the will and other facts bearing on the question. Hamilton Estate, supra; Chambers Estate, 438 Pa. 22, 263 A.2d 746 (1970); Hill Estate, supra. Should the testator's intent remain uncertain, a court resorts to canons of construction to supply the testator's likely intent. Blough Estate, supra; Grimm Estate, 442 Pa. 127, 275 A.2d 349 (1971); Chambers Estate, supra. The intent of a testator must appear with reasonable certainty, such that there can be little doubt of his intent. If, from the language ...