Nos. 94 & 95 March Term, 1977, Appeals from the Final Decree of the Orphans' Court Division of the Court of Common Pleas of Allegheny County, Pennsylvania, sitting en banc at No. 854 of 1949.
Gilbert J. Helwig, Robert G. Lovett, Pittsburgh, for appellant in No. 94.
John E. Grasberger, Litman, Litman, Harris & Specter, Pittsburgh, for appellant in No. 95.
Donald L. McCaskey, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Julian Ruslander, Berman, Ruslander, Pohl, Lieber & Engel, Pittsburgh, for appellee in Nos. 94 and 95.
Roslyn M. Litman, Litman, Litman, Harris & Specter, Pittsburgh, for appellee in No. 94 only.
Gilbert J. Helwig, Robert G. Lovett, Reed, Smith, Shaw & McClay, Pittsburgh, for appellee in No. 95 only.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, J., did not participate in the consideration or decision of this case. Eagen, C. J., joins in the Opinion of the Court and files a concurring opinion. Manderino, J., filed a dissenting opinion. Larsen, J., filed a dissenting opinion in which Manderino, J., joins.
In 1927, testator Isaac Frank created an irrevocable trust by which he received income for life. At his death, his three children, William K. Frank, Robert J. Frank and Bessie Frank Anathan, were to receive income from the trust for their respective lives. The trust provided that, upon the death of each child, "the share of the income from the trust fund of the one so dying shall be paid to his surviving wife or her surviving husband" for life or until remarriage. If a child died without a surviving spouse, or upon death or remarriage of the surviving spouse, the trust for that child continued for the benefit of his or her issue, who were to receive income in equal shares per stirpes until termination of the trust. The trust was to end
"at the decease of my last surviving child, and when both my daughters-in-law and my son-in-law shall have died or remarried then and thereupon the corpus of this trust estate shall be divided into three equal parts or shares . . . ."
The trust provided that upon termination, the trustees would divide the principal into three equal parts to be distributed as each of testator's children had appointed or, in default of exercise of the power of appointment or if the child died without issue surviving, to the child's heirs at law under the intestate laws of the Commonwealth of Pennsylvania.
When testator created the trust in 1927, his daughter Bessie Frank Anathan was 41 years old. She had married Simon Anathan more than fourteen years previously and bore him two children. Bessie died in 1976. Testator's second child, William K. Frank, was 36 years old in 1927 and married to Florence K. Frank since 1914. The couple had three children. Florence K. Frank died in 1940. Five years later, William K. Frank married Mary K. Frank, by whom he had one child. William K. Frank died in 1964. Mary K. Frank is now 67 years old. Testator's third child, Robert J. Frank, was 30 years old in 1927 and married to Cecilia K. Frank for five years. He and Cecilia had two children. Robert J. and Cecilia Frank were divorced in 1951. That same year, Robert J. married Ruth Louise Frank, who remained his wife until her death in 1963. The couple had a son. Robert J. Frank died in 1964.*fn1
Robert J. Frank appointed his share of the trust to his children, Alan, Joan and Barbara. William K. Frank declined to exercise his power of appointment if the trust terminated before his wife Mary's death or remarriage but, if the trust ended at her death or remarriage, appointed to his surviving issue. Bessie Frank Anathan appointed her share to her issue living at the time of distribution.
Upon the death of Bessie Frank Anathan in 1976, the trustees petitioned the orphans' court for distribution. Appellants, Barbara Frank Dane, Joan Frank Apt and Alan Frank, children of Robert J. Frank, argued to the auditing judge that the trust was intended to terminate upon Bessie's death because she was testator's last surviving child. Their position was that under the provision terminating the trust "at the decease of my last surviving child, and when both my daughters-in-law and my son-in-law shall have died or remarried . . ., only individuals married to testator's children at the time of execution of the trust could be a daughter- or son-in-law. Because all those individuals had died by 1971, appellants asserted that the trust ended in 1976 when Bessie died. Appellees Mary K. Frank and her
daughter Maude, argued that Mary was a daughter-in-law of testator and that consequently the trust could not terminate until she either died or remarried. The auditing judge determined that Mary K. Frank was a daughter-in-law and that therefore the trust had not terminated.*fn2 The orphans' court en banc, equally divided, affirmed the determination of the auditing judge. The only question on this appeal is whether Mary K. Frank is a ...