Nos. 260, 263 & 266 January Term, 1978, No. 260 January Term, 1978, No. 263 January Term, 1978, No. 266 January Term, 1978, Appeals from Decrees of the Court of Common Pleas of Philadelphia, Orphans' Court Division, No. 3710 of 1040.
Philip A. Bregy, Philadelphia, for appellant in No. 260 and appellee in Nos. 263 and 266.
Norman H. Brown, Philadelphia, for appellant in No. 263 and appellee in Nos. 260 and 266.
William H. Ewing, Philadelphia, for appellant in No. 266 and appellee in Nos. 260 and 263.
Joseph E. Greene, Jr., Philadelphia, for appellee in No. 260.
Roberts, Justice. Eagen, C. J., dissents.
In her will, decedent Charlotte H.S. Houston directs that the income from her two residuary trusts be paid to the two
children of her first marriage. She then directs that, after the deaths of these two children and "upon my youngest grandchild reaching the age of twenty-one (21) years . . ., the balance and principal of both said trusts be paid and distributed to such of my grandchildren as may be living at the time of my death . . . ."
Presented in these appeals are two questions: (1) whether testatrix intended grandchildren born after her death to share in the gift of principal; and (2) if not, whether she nonetheless intended to include in the gift those grandchildren of her second marriage born during her lifetime. We share the unanimous conclusion of the orphans' court en banc that the words "such of my grandchildren as may be living at the time of my death" unambiguously exclude afterborn grandchildren. We also conclude, as did three of the six judges below, that the only reasonable interpretation of the language of the will and the surrounding circumstances is that testatrix intended the principal to be paid to only the grandchildren of her first marriage.
Charlotte H.S. Houston died in 1940 at age seventy-two, having executed a will dated February 15, 1934, and a codicil dated October 22, 1934.*fn1 By her first marriage to Charles W. Brown, testatrix had a son, Charles, and a daughter, Charlotte Brown Frazier. Her son Charles died in 1951, survived by both his sons, Charles, Jr., and Wayne*fn2 (the Brown grandchildren). Her daughter Charlotte died in 1973, survived by her three children, W.W. Frazier IV, Josephine Frazier Hart, and Bettina Frazier Wall (the Frazier grandchildren).
Testatrix's first husband died in 1898. Thereafter she married Samuel F. Houston, by whom she had one child, Eleanor Houston Smith. On the date testatrix executed her will, Mrs. ...