No. 797 JANUARY TERM, 1977 Appeal from the Decree of the Court of Common Pleas of Philadelphia County, Orphans' Court Division, Dismissing Exceptions and Confirming Adjudication as of No. 2468 of 1975.
George H. Nofer, James D. Crawford, Philadelphia, for appellants.
Linda A. Fisher, Philadelphia, for appellees.
Israel Packel, Philadelphia, for appellee, Judith Wilson.
Edward N. Polisher, David R. Schwartz, Philadelphia, for Fidelity Bank.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Manderino, J., did not participate in the consideration or decision of this case. Roberts and Nix, JJ., concurred in the result.
This is an appeal from a decree of the Orphans' Court Division of the Court of Common Pleas of Philadelphia
County. A majority of the court en banc dismissed exceptions to the adjudication of the auditing judge and affirmed the adjudication absolutely. This direct appeal followed.*fn1 For the reasons stated herein, we find appellant's contentions to be without merit and therefore affirm.
By deed dated April 17, 1934, Abraham Pleet established a life insurance trust in which he created, inter alia, a life income interest in his wife and subsequent life income interests in his two sons, Herbert Pleet and Gilbert Pleet. At issue here is the proper scheme for distribution of principal at the death of each of settlor's sons.
Abraham Pleet (settlor) died August 1, 1937. Lena Pleet (settlor's wife) died August 21, 1956, leaving settlor's two sons as beneficiaries of the trust income. The present account was filed for audit by reason of the death of Herbert Pleet on May 2, 1975. Herbert Pleet is survived by three children and seven grandchildren. Gilbert Pleet, who is still living, has one child and three grandchildren.*fn2
The provision of the trust indenture giving rise to dispute is Item SECOND (d), which provides, in pertinent part:
Upon the death of the survivor of Settlor and his said wife to pay the said net income equally unto Settlor's sons, Herbert Pleet and Gilbert Pleet, for and during the terms of their respective lives. Upon the death of each of the said sons of Settlor, whether such death shall occur before or after the death of the survivor of Settlor and his said wife, to transfer, assign and pay over at any time fixed for the distribution thereof, the principal of the trust represented by the son of Settlor so dying, or which would have been represented by such son had he been living at the time fixed for the said distribution, unto such of the children and issue of deceased children of Settlor's sons, Herbert Pleet and Gilbert Pleet, as may be living at the time fixed for the said distribution equally, per stirpes, absolutely, and in default of such issue then living of settlor's said sons to transfer, assign and pay over the said share of principal unto the survivor of Settlor's said sons absolutely. (Emphasis added).
The dispute at audit and before us now is the correct interpretation of the above quoted (italicized) language and the manner in which the principal now distributable shall be awarded. The issue, succinctly stated, is: precisely which persons comprise the class of takers to receive the distribution of Herbert Pleet's share of principal?
Three possible methods of distribution have been suggested:
(1) equally to all four children of both sons (appellants' position);
(2) one-sixth to each of Herbert Pleet's children and the remaining one-half to the child of Gilbert Pleet (the original ...