No. 47 March Term, 1977, Appeal from the Decree entered September 23, 1976, of the Court of Common Pleas of Mercer County, Pennsylvania, Orphans' Court Division, at No. 33547.
John G. Kish, Pittsburgh, for appellants.
Cyril T. Garvey, Sharon, for Katherine Applegate and Susan Applegate.
Edward B. Madden, Sharon, for McDowell Nat. Bank of Sharon, Pennsylvania.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., concurs in the result. Pomeroy, J., filed a dissenting opinion.
Testator William A. Applegate executed a will on November 25, 1970, devising the residue of his estate to McDowell National Bank as trustee to divide certain properties "into two equal parts and [to] hold one part in trust for the use and benefit of my daughter, Donna Jean White, and her children and [to] hold the other part in trust for the use and benefit of the children of my son, William K. Applegate." The will further provided that the trust established for the children of William K. Applegate "shall continue until the youngest child of the said William K. Applegate shall have attained the age of twenty-five years at which time the said trust shall terminate and the corpus thereof together with any accumulated income therefrom shall be divided equally among so many children as there are for whom the trust was established." A corresponding clause directed that the trust established for Donna Jean White and her children "shall continue until the death of my daughter, Donna Jean White, and so long thereafter as is necessary for her youngest child to attain the age of twenty-five years at which time the said trust shall terminate and the corpus thereof together with any accumulated income therefrom shall be divided equally among so many as there are for whom the trust was established." Thus, the instrument provided that the trustee distribute income from the corpus to Donna Jean White and the children of both Donna Jean White and William K. Applegate and divide the corpus of each trust among the grandchildren of testator when the youngest reached the age of twenty-five.
Testator died on October 9, 1972. At that time, William K. Applegate was married to his first wife by whom he had four children, including appellees Katherine Applegate and Susan L. Applegate. On October 18, 1973, Jennifer Lee Applegate was born out of wedlock to William K. Applegate and Barbara Ann Mason. On February 4, 1974, William K. Applegate obtained a divorce from his first wife and subsequently married Barbara Ann Mason. On July 2, 1975,
William K. Applegate adopted Vivian Rose Applegate, the daughter of Barbara Ann Mason, his second wife. On February 25, 1976, the trustee petitioned the orphans' court division of the court of common pleas for a declaratory judgment to determine whether Jennifer Lee Applegate and Vivian Rose Applegate were members of the class of "children" entitled to benefits under testator's will. The orphans' court concluded that the class of beneficiaries closed upon the death of testator and therefore included only the four children born to William K. Applegate by his first wife because Jennifer Lee Applegate and Vivian Rose Applegate became children of William K. Applegate after testator's death. We believe the orphans' court erred and therefore vacate its decree and remand for further proceedings.*fn*
By making a gift to a group of individuals uncertain in number at the time of the gift who are to be determined at a future time to take in equal shares depending on the number of takers, testator created a class gift. See Estate of Clarke, 460 Pa. 41, 331 A.2d 408 (1975); Moyer Estate, 389 Pa. 228, 132 A.2d 667 (1957). The only question here is the scope of the class. As in any matter involving interpretation of a will, the intent of the testator, if it can be ascertained, must prevail. Estate of Sykes, 477 Pa. 254, 383 A.2d 920 (1978); Blough Estate, 474 Pa. 177, 378 A.2d 276 (1977); Hamilton Estate, 454 Pa. 495, 312 A.2d 373 (1973). To determine 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." Estate of Sykes, 477 Pa. at 257, 383 A.2d at 921; accord, Hamilton Estate, supra; Chambers Estate, 438 Pa. 22, 263 A.2d 746 (1970). This intent "must appear with reasonable certainty, such that there can be little doubt of his intent." Estate of Sykes, supra. Only when the intent does not appear with reasonable certainty will a court resort to rules of construction.
Id. Without specifying the language of the will, the circumstances or any other supporting facts upon which it relied, the orphans' court concluded that testator intended to exclude from the class of beneficiaries any children not ascertained at the time of his death.
Testator did not directly express his intent on this matter. He did not specify either that the class of beneficiaries was to close or remain open upon his death. The language of the will, however, and the scheme of distribution indicate that testator meant to include children not ascertained at the time of death.
The strongest evidence of testator's intent to leave the class open after his death lies in the scheme of distribution. Testator expressly provided:
"Unless terminated at an earlier date under the foregoing provisions, this trust shall cease twenty (20) years after the death of the last surviving of the following persons, namely, myself and all my lineal descendants living at the time of my decease, and distribution of ...