Nos. 98, 103, 104 January Term, 1979, Appeal from Final Decree of the Court of Common Pleas of Philadelphia, Orphans' Court Division, dated February 13, 1979, at No. 1123 of 1951.
John R. Suria, John F. Meigs, Maurice D. Lee, III, Martha R. Hurt, Philadelphia, for appellant in No. 98.
William C. Bullitt, David W. Maxey, Cuthbert H. Latta, Philadelphia, for Gloria Dean Dulles.
Minturn T. Wright, III, Robert L. Freedman, Louisa Smith Mygatt, Philadelphia, for Girard Bank.
Roberts, Justice. O'Brien, C. J., concurs in the result.
This is a dispute among the three grandchildren of settlor Ida J. Dulles, as well as settlor's trustee, concerning the right of one of the grandchildren, born out of wedlock, to receive income from settlor's trust. The Orphans' Court Division of the Court of Common Pleas of Philadelphia held that the grandchild born out of wedlock has been entitled to share trust income equally with the other two grandchildren since December 25, 1971, when, under the terms of the trust, the exclusive right of settlor's "grandchildren" to trust income commenced. We hold that, although all three grandchildren are to share future trust income equally, on this record the grandchild born out of wedlock may recover only the amount of past trust income which settlor's trustee, by stipulation of the parties, has reserved pending final adjudication of the claims of the grandchild born out of wedlock. Accordingly, the decree is modified and, as modified, affirmed.
Settlor died on November 7, 1949, leaving a will dated July 22, 1943, and several codicils, the last dated May 13, 1949. The will and codicils were drafted with the assistance of counsel. By paragraph SEVENTH of the will, settlor placed her residuary estate in trust. The trust is active, and is to remain so until twenty-one years after the death of the last of settlor's "descendants" born in settlor's lifetime.
Settlor directed her trustees to pay income from the paragraph SEVENTH residuary trust to her son, Harrison Dulles, for his life. Additionally, settlor directed that, during her son's life, trust income was to be paid to those grandchildren who had reached the age of twenty-one. For the period when the eldest of settlor's grandchildren was between the ages of twenty-one and twenty-five, those grandchildren who had reached the age of twenty-one were to share equally in ten percent of trust income. For the period when the eldest was between twenty-five and thirty-five, those grandchildren over twenty-one were to share
fifteen percent of the income. Settlor further provided that, upon the death of her son, "my grandchildren will share in the income under the next succeeding paragraph." That paragraph provides:
"(c) Upon the death of my said son, until the termination of the Trust, to pay over the balance of the net income, quarter-yearly, to and among my descendants living at such times of quarterly distribution, share and share alike, per stirpes, upon the principle of representation."
Harrison Dulles was the father of three children, Frank Dulles, Gloria Dulles, and Florence Dulles. Frank Dulles was born in 1940 of Gweneth Dulles, Harrison Dulles' first wife. Gloria Dulles was born in 1944, out of wedlock, of Marguerite Bonnarde. Florence Dulles was born in 1959, of Clelia Dulles, Harrison Dulles' second wife. (Harrison Dulles and his first wife had been divorced in 1949.)
A fourth child, Henry Dulles, was born in 1944 of Harrison Dulles' first wife. However, by codicil to her will, settlor limited participation of the first wife's children to Frank Dulles. Although settlor specified no reason for this limitation, it appears that settlor shared her son Harrison Dulles' belief, expressed by will, that he was not Henry Dulles' father.
In 1961, settlor's eldest grandchild, Frank Dulles, reached the age of twenty-one. Settlor's trustees filed an account in 1962 and, upon confirmation, Frank Dulles began to share trust income with his father. No similar allocation of trust income was made in 1965, when Gloria Dulles, settlor's grandchild born out of wedlock, reached twenty-one. Frank Dulles thus was the sole grandchild of settlor to share trust income with settlor's son.
Settlor's son Harrison Dulles died on December 25, 1971, leaving a will dated March 5, 1956. In his will, Harrison Dulles acknowledged that Gloria Dulles was his daughter. In May of 1972, trustees of settlor's trust filed an account covering the period since the 1962 accounting. The trustees proposed to distribute trust income exclusively to Frank
Dulles and Florence Dulles, settlor's grandchildren born in wedlock. Although the trustees recognized the existence of Gloria Dulles, they maintained that she was barred from sharing in trust income by existing "canons of construction," then contained in Section 14(7) of the Wills Act of 1947, Act of April 24, 1947, P.L. 89, as amended, formerly 20 P.S. § 180.14(7). Section 14(7) provided that, absent an expression of intent to the contrary,
"in construing a will making a devise or bequest to a person or persons described by relationship to the testator or to another, a person born out of wedlock shall be considered the child ...