Nos. 521 & 522 January Term, 1978, No. 80-3-690, Appeals from the Final Decrees of the Court of Common Pleas of Philadelphia, Orphans' Court Division, at No. 1546 of 1937.
James R. Ledwith, Philadelphia, for appellant.
Robert L. Freedman and Linda A. Fisher, Philadelphia, for The Fidelity Bank.
H. Ober Hess, Philadelphia, for Mary C. H. Bishop and John M. Holton, Jr.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., concurs in the result.
Settlor S. Pearce Holton died in 1931, leaving a will dated March 16, 1929, creating a number of trusts. One of the trusts, created by paragraph eleven of the will, was for the benefit of settlor's son, Howard C. Holton, for his life. Upon the son's death, trust income was to be paid to the son's "children." If the son died without "children," the corpus of the trust was to be divided in two equal parts.
One-half of the corpus was to be made subject to a general, testamentary power of appointment in favor of the son. The other half was to be added to a residuary trust created by settlor under paragraph 14(c) of his will for the exclusive benefit of his natural grandchildren, appellees John M. Holton, Jr., and Mary C. Holton.
Howard Holton adopted appellants, S. Pearce Holton, II, and Henrietta Thomas, after settlor's death. Following Howard Holton's death in 1957, appellants sought to claim the benefits of the Paragraph 11 Trust. In 1960, this Court affirmed a decree of the Orphans' Court Division of the Court of Common Pleas of Philadelphia which held that appellants were not "children" of Howard Holton for purposes of the trust. Holton Estate, 399 Pa. 241, 159 A.2d 883 (Holton I).
That same year, on remand, pursuant to settlor's direction the Paragraph 11 Trust was terminated by court decree. Even though appellants did not take as "children" under the Paragraph 11 Trust, they were adjudged beneficiaries of one-half of the Paragraph 11 Trust corpus because their father had exercised the general testamentary power in their favor. The other half of the Paragraph 11 Trust corpus was added to the Paragraph 14(c) Residuary Trust for the benefit of appellees.
In accordance with paragraph 14(c) of settlor's will, appellees have been the sole recipients of income from the residuary ...