No. 398 January Term, 1977 Appeal from Decree of the Court of Common Pleas of Chester County, Orphans' Court Division, No. 15,964 of 1924, Entered March 9, 1977.
James R. Ledwith, Philadelphia, for appellant.
Ralph N. Teeters, Philadelphia, for appellee, Fidelity Bank.
Walter E. Nelson, Jr., Philadelphia, for appellee, Charles DaCosta, Jr.
Roland J. Christy, Spring House, for appellee, Peter M. DaCosta.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Larsen and Flaherty, JJ., concur in the result. Eagen, C. J., and O'Brien, J., dissent.
Since Tafel Estate, 449 Pa. 442, 296 A.2d 797 (1972), we have required that adopted children be presumptively included in a testamentary gift to "children" unless the testator's intention to exclude adopted children is clearly indicated. Appellant, an adopted child, claims the right to participate in future income distributions from a testamentary trust established by his adoptive great-grandfather.
The orphans' court held that because appellant could have litigated his claim at a 1952 audit of an account of the estate but failed to do so, that appellant's claim to future income is now barred by principles of res judicata. We hold that the 1952 accounting does not preclude appellant from sharing in future distributions of trust income and accordingly reverse.
In 1923 Henry Biddle died a resident of Chester County. By item SIXTH of his will he left his residuary estate in trust, directing payment of half the income to his daughter Mildred L. Cadwalader for her life, and the other half, per stirpes, to the issue of his deceased daughter, Juliet DaCosta. The testator instructed that on the death of his daughter Mildred the income be paid to his grandchildren, per capita, and to the issue of any deceased grandchildren, per stirpes.*fn1 The will was duly probated on July 9, 1923 and administration of the trust began.
On September 19, 1949 testator's daughter Mildred died. Shortly thereafter, on February 9, 1950, C. Alexander DaCosta, one of testator's three grandchildren also died. He was survived by two natural children, Charles A. DaCosta, Jr. and Peter M. DaCosta, and by appellant, James Murdock DaCosta, whom C. ...