No. 319 January Term, 1977, Appeal from Decree of January 28, 1977, of the Orphans' Court of Common Pleas of Montgomery County, No. 46192.
David M. Jordan, Norristown, for appellant.
Paul Baker Bartle, Norristown, for appellees Fidelity Bank et al.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.
Testator, Robert Sewell, Sr., died in 1939, survived by his wife and three children, Robert Sewell, Jr., Elizabeth Sewell Odell and Beatrice Sewell Brown. By his will, testator bequeathed his entire estate to named trustees in trust for the benefit of his wife for life. In subparagraph First (c), testator directed the trustees, upon his wife's death,
"to pay over the net income in quarterly installments equally to my children then living and the issue of any children then deceased, including the issue of any children who predecease me, issue of deceased children taking the share their parent would take if living, and to continue such payments to my issue per stirpes until the death of my last surviving child."
Testator's wife died in December, 1968. At the time of her death, only one child of testator, Beatrice Sewell Brown, was still living. Upon the orphans' court's confirmation of a first accounting, testator's trustees began to pay trust income exclusively to Beatrice Sewell Brown. Exclusive payments of income continued until March, 1975, when Beatrice Sewell Brown died.
On this second accounting, filed by trustees upon the death of Beatrice Sewell Brown, appellant Sharon Lee Watts challenged, as she now challenges on appeal, her exclusion from income payments under subparagraph First (c). Appellant is the adopted child of Robert Sewell, Jr., one of testator's children who predeceased testator's wife. Appellant was never given notice of the trustees' first accounting.*fn1 Indeed, until the second accounting, appellant was unaware of the terms of her grandfather's bequest.
The trustees gave appellant notice of the second accounting, informing her of her right, under another clause of testator's will, to share in trust principal as a "grandchild."*fn2 It was only upon notice of the second accounting that appellant learned of the exclusive payments of income to Beatrice Sewell Brown. Appellant then claimed that this Court's decision in Tafel Estate, 449 Pa. 442, 296 A.2d 797 (1972), permitting an adopted child to take under a bequest to "children," entitled her to share trust income with Beatrice Sewell Brown as an "issue of a deceased child." Although appellant does not contend that she should have been paid trust income before this Court's decision in Tafel, ...