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June 9, 1978



Leonard J. Cooper, Esquire, for the Accountants

Robert A. Wachter, Esquire, and David S. Workman, Esquire, for parents of Scott Alan Snellenburg Elkins

William T. Tsiouris, Esquire, for Albert Einstein Medical Center

C. Suzanne Buechner, Esquire, Guardian ad Litem for Scott Alan Snellenburg Elkins

Pamela Esposito, Esquire, Guardian ad Litem for Jeffrey G. Snellenburg, Janet H. Snellenburg, Haylie Snellenburg and Todd I. Snellenburg

Jamieson, J.

Author: Jamieson

[1 Phila. 587 Page 587]

Gordon A. Block, Jr., died August 16, 1973, leaving a will dated December 21, 1966, and codicils dated April 5, 1968 and March 25, 1971. Under Item Eleventh of his will, he left the residue of his estate in

[1 Phila. 587 Page 588]

    trust. He directed his trustees to pay the income and so much of the principal as they deemed appropriate for her maintenance and comfort to his housekeeper, Della McGearty, during her life. On her death, the trustees were to pay $5,000 to the Albert Einstein Medical Center. The remaining principal was to be distributed to testator's then-living grandnephews and grandnieces, per capita. The trustees were directed to hold the share of any minor beneficiary in trust during minority, and to pay over so much of the principal and income as they deemed appropriate for the welfare and support of the minor. The remaining principal and income was to be distributed to the beneficiary when he or she reached majority.

Testator named Morris H. Goldman and Milton H. Snellenburg, Jr. trustees under his will. Morris H. Goldman died December 24, 1973, and, pursuant to the direction under Item Sixteenth of the will, was succeeded by Robert B. Wolf.

The fund accounted for here was awarded to the accountants by Adjudication of Klein, A.J., dated December 23, 1974. The present account was filed because of the death of Della McGearty, life tenant, on April 29, 1977.

When Della McGearty died, five minor grandnieces and grandnephews of testator survived. Jeffrey G. Snellenburg, born December 9, 1968 and Janet H. Snellenburg, born June 1, 1967, are the children of testator's nephew, Roger G. Snellenburg. Todd I. Snellenburg, born December 8, 1975 and Haylie Snellenburg, born November 26, 1973, are the children of Milton H. Snellenburg, Jr. and his third wife, Susan Snellenburg. Scott Alan Snellenburg, now Scott Alan Elkins, who was born September 1, 1964, is the child of Milton H. Snellenburg, Jr. and his first wife, Sue Ellen Snellenburg, now Elkins. On October 23, 1974,

[1 Phila. 587 Page 58914]

months after testator's death, Scott was adopted by his mother's husband, Leonard R. Elkins. . . .

The question for adjudication is whether Scott Alan Snellenburg Elkins is entitled to share in distribution of the estate, since he was adopted out of the family by his stepfather after the testator's death.

In questions concerning proper distribution under a will, the intent of the testator controls. The intent must be determined by consideration of the entire will, read in the light of circumstances surrounding the testator when the will was written. March Estate, 357 Pa. 216 (1947). Where the will is clear and unambiguous, its meaning must be ascertained from its language. In re Estate of Tower, 463 Pa. 93 (1975). The court need rely on the canons of construction only where the language of the will is ambiguous or conflicting or the testator's intent is uncertain. Pearson Estate, 442 Pa. 172 (1971). Testator's intent in the instant case is clear from the will itself and the circumstances surrounding him when it was written.

Testator's scheme of distribution was established when his will was written in 1966. He provided that the residue of his estate was to be held in trust during the lifetime of the income beneficiary, and the remainder, after the charitable bequest, was to be distributed to the testator's then living grandnieces and grandnephews. At that time, his only grandniece or grandnephews was Scott Alan Snellenburg, now Scott Alan Elkins. Testator's nephew, Milton H. Snellenburg, Jr., was then divorced from Scott's mother and Scott was in the custody of and living with his mother. Nevertheless, when he wrote the will, testator clearly intended that Scott share in the estate.

From the time the will was executed until his death, testator never changed the dispositive scheme of the

[1 Phila. 587 Page 590]

    will. On April 5, 1968, testator executed a codicil which amended Paragraph B of Item Eleventh, the provision pertinent here, but he made no change in the dispositive scheme. In 1971, testator executed another codicil. At that time, he had three grandnieces and grandnephews: Scott and the two children of Roger Snellenburg, Janet and Jeffrey. Scott's father was married for a third time and custody of Scott remained with his mother. Although testator could have changed his dispositive scheme through the codicil, he did not. Reading the will in the light of circumstances surrounding testator at the time of execution of his will and codicils, we find that testator intended to include Scott in the ultimate distribution of the estate. Further, we find no indication that testator intended to exclude any grandniece or grandnephew who was later adopted out of the family.

In Matter of Tracy, 464 Pa. 300, 346 A.2d 750 (1975), the Supreme Court considered an analogous situation. There, the settlor, Dr. Stephen Tracy, executed a revocable deed of trust which provided life estates for himself and his wife, followed by life estates for his two children, the share of each of his children to be distributed at that child's death to his or her issue per stirpes. When the deed was executed in 1944, settlor's son, Stephen, Jr., was married to his prior marriage, who lived with her mother. After the deed was executed, Stephen, Jr., and his wife had a son, Stephen IV. Thereafter, Stephanie's mother remarried, and later Stephanie, with her father's consent, was adopted by her stepfather. When Stephen, Jr. died in 1972, a question arose as to whether Stephanie had the right to participate in the distribution of his share. The Court, per Roberts, J., concluded that the provisions for distribution to "issue" of the settlor's children

[1 Phila. 587 Page 591]

    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 consent to her adoption by her stepfather. Absent any evidence of an intent to exclude Stephanie because 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.

Tracy, supra, at 305-06. See also Taylor Estate, 375 Pa. 120, 53 A.2d 136 (1947). We find that the term "grandnephews" here as clearly identifies Scott as a beneficiary under the will of Gordon A. Block, Jr., as the term "issue" identified Stephanie as a beneficiary under the deed of trust of Dr. Stephen Tracy. Absent any evidence of intent to exclude in the event of later adoption, we need not resort to rules of construction.

The guardian for the other, non-adopted, grandnieces and grandnephews argues that testator's direction that after Della McGearty's death the residue be07 divided among his grandnephews and grandnieces living at that time indicates an intent to exclude persons adopted out of the family after testator's death. Although we agree that the will indicates testator's intention that the class entitled to take be determined at Della McGearty's death, rather than at his own death, we see no evidence that testator intended that Scott be excluded from the class. In Tracy, supra, as in the instant case, the class of beneficiaries was to be determined at the death of the life tenant. There, as here, one member of the class had been adopted out of the family before the life tenant's death. Nonetheless, the Court found that the testator intended that the after-adopted child share in the distribution.

[1 Phila. 587 Page 592]

In light of testator's clearly expressed intent to include clude Scott in the distribution of his estate, and in consideration of the Court's holding in Tracy, we find that the testamentary provision for delayed determination of the class of beneficiaries is not indicative of an intent to exclude Scott.

When the statutory rules of construction are applied, the same conclusion is reached. Section 2514 (7) of the Probate, Estates and Fiduciaries Code sets forth the rules of interpretation regarding adopted children. Since the current subsection (7) was not a part of the Code at the time the testator died, however, it is not applicable to this case. The applicable provision is the one in effect at the time of the testator's death. See, e.g., Tafel Estate, 449 Pa. 442, 446 n.3 (1972);*fn1 In re Estate of Tower, supra.*fn2

In 1966, when his will was written, and in 1973, when Gordon Block died, the rule of interpretation with regard to adopted persons stated:

(7) ADOPTED CHILDREN. In construing clauses (9), (10) and (11) of this section, relating to lapsed and void devises and legacies, and in construing a will making a devise or bequest to a person or persons described by relationship to the testator to to another, any

[1 Phila. 587 Page 593]

    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: Provided, That if a natural parent shall have married the adopting parent before the testator's death, the adopted person shall also be considered the child of such natural parent.

The class of persons removed from sharing in a class gift made by a relative of the blood is explicitly defined by the statute as persons adopted before the death of the testator. Such a statute is to be strictly construed. Tafel, supra, at 446; Tracy, supra, at 307 (concurring opinion of Jones, C.J.). Since Scott was not adopted by his stepfather during testator's lifetime, he is not removed by statute from the class of blood relatives entitled to share in the estate.

The statute and the canons of construction reinforce the conclusion, based on testator's intention as expressed in his will and the circumstances surrounding him when the will and codicils were executed, that Scott Alan Snellenburg, now Scott Alan Elkins, is a proper distributee under the will of his great uncle, Gordon A. Block, Jr.

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