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ESTATE JOSEPH DEROY (10/06/78)

decided: October 6, 1978.

IN RE ESTATE OF JOSEPH DEROY, DECEASED. APPEAL OF JEAN DEROY ARONSON


No. 73 March Term, 1977, Appeal from the Decree of the Court of Common Pleas of Allegheny County, Orphans' Court Division, entered on November 23, 1976 at No. 2021A of 1951

COUNSEL

Mark B. Aronson, Pittsburgh, for appellant.

Sanford M. Aderson, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., concurred in the result. Pomeroy, J., filed a dissenting opinion in which Eagen, C. J., and O'Brien, J., join.

Author: Manderino

[ 481 Pa. Page 405]

OPINION OF THE COURT

This appeal is brought by Jean DeRoy Aronson, the adopted daughter of Joseph DeRoy, deceased. Appellant claims the corpus of a testamentary trust set up for the benefit of her adoptive parents. The court below held that she was not entitled to the corpus of the trust because she was precluded by previous litigation. We believe the court below erred and we therefore reverse.

[ 481 Pa. Page 406]

The testator, Joseph DeRoy, executed his last will and testament on May 25, 1918, and died shortly thereafter. By the terms of the will, a trust of one-eighth of the residuary estate was created for one of testator's sons, Israel DeRoy. The paragraph of the will so providing was paragraph NINTH(f), which reads in relevant part:

"(f) The equal one-eighth (1/8) part of said rest, residue and remainder of my estate I give, devise and bequeath unto my sons, Abraham J. DeRoy, and Al J. DeRoy, IN TRUST, HOWEVER, for the following uses and purposes, that is to say, in trust to . . . [pay the net income] monthly to my son, Israel DeRoy, during the term of his natural life. . . . Upon the decease of my said son, Israel DeRoy, the principal of said trust fund and any accrued income then on hand shall be divided in equal proportions share and share alike among the children of my said son, Israel DeRoy, or their issue, per stirpes and not per capita; should none of the children of my said son, Israel DeRoy, nor their issue, be living at the time of his decease, then and in that event the said equal one-eighth part of the residue of my estate and any accrued income then on hand shall continue to be held by my said sons, Abraham J. DeRoy and Al J. Deroy, IN TRUST, HOWEVER, for the following uses and purposes, that is to say, in trust . . . [to pay the net income] monthly to my daughter-in-law, Helen Goldman DeRoy, during the term of her natural life. . . . Should none of the children of my said son, Israel DeRoy, nor their issue, nor my said daughter-in-law, Helen Goldman DeRoy, be living at the time of the decease of my said son, Israel DeRoy, then and in that event the principal of said trust fund and any accrued income then on hand shall revert to my estate and be distributed in accordance with the intestate laws of the State of Pennsylvania. Should my said daughter-in-law, Helen Goldman DeRoy, be living at the time of the decease of my said son and become the beneficiary of said trust fund for the term of her natural life as above set forth, then and in that event upon the decease of my said daughter-in-law the principal of said trust fund and any

[ 481 Pa. Page 407]

    accrued income then on hand shall revert to my estate and be distributed in accordance with the intestate laws of the State of Pennsylvania."

Israel DeRoy and his wife, Helen Goldman DeRoy, had no children of their own but did, in April of 1921, adopt Jean Lois DeRoy (appellant) who was then four years of age. On January 28, 1933, Israel DeRoy died and in March of that year the trustees filed their first account. An audit hearing on the account was then held at which a principal question was whether the trustees should distribute the trust principal to Jean Lois DeRoy as "children" under paragraph NINTH(f) of the will, supra, or retain the funds in trust and distribute the income to Helen Goldman DeRoy as dictated by the will (should Israel DeRoy die without leaving children or issue of children surviving). The orphans' court appointed a guardian ad litem to represent the interests of Jean Lois DeRoy, who was then a minor 16 years of age. Following submission to the court of the guardian's "Report and Opinion", the auditing judge entered a decree nisi dated May 24, 1933, ordering that the trustees distribute the trust income to Helen Goldman DeRoy for "purposes specified in will." No exceptions were filed to the decree nisi, which therefore became the final decree of the orphans' court upon the expiration of ten days. No appeal was taken from the final decree.

For over 40 years, until her death in 1974, the income of the trust was paid to Helen Goldman DeRoy. Mrs. DeRoy's death prompted the filing by the surviving trustee of a final account in March of 1975. Jean Lois DeRoy, now by marriage Jean DeRoy Aronson, thereupon filed a claim for the balance of principal of the trust. After two hearings the auditing judge ordered that the trust principal be distributed to the intestate heirs of Joseph DeRoy. Appellant took timely exceptions to the decree nisi, which were dismissed by the court en banc, and this appeal followed.

Critical to the orphans' court's 1933 determination was the question of whether the term "children", as employed in paragraph NINTH(f) of Joseph DeRoy's will ("should none

[ 481 Pa. Page 408]

    of the children of my said son, Israel DeRoy, nor their issue, be living" at the time of Israel's death), included adopted children or whether it was restricted to the natural offspring of Israel DeRoy. The report of the guardian ad litem who then represented the interest of Jean Lois DeRoy included the following observations of the applicable law:

"In this particular case, it is to be noted that Joseph DeRoy died on December 12, 1918, and that Jean Lois DeRoy was adopted by Israel DeRoy and Helen Goldman DeRoy, his wife, by Decree of Adoption dated February 3, 1921. Jean Lois DeRoy is, therefore, clearly not a child 'adopted before the date of the will.' My conclusion from the wording of the above mentioned section of the Wills Act [Section 16(b) of the Wills Act of June 7, 1917, P.L. 403] is, therefore, that the Will of Joseph DeRoy, must be so ...


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