No. 80-3-808, Appeal from the Order dated October 22, 1980 of the Court of Common Pleas of Cumberland County, Pennsylvania, Orphans' Court Division at No. 21-79-725, In Re: Petition For Declaratory Judgment.
Jack M. Stover, Harrisburg, for appellant.
Ronald E. Johnson, Carlisle, for Farmers Trust Co.
William H. Nast, Jr., Harrisburg, for Joseph L. Matza, et al.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.
In 1915 settlor Fleeta Bosler Bashore and her husband created an irrevocable trust that would provide income to settlor for life and, after her death, would benefit her children and grandchildren. All three of settlor's children, appellee Herman B. Bashore, appellee Fleeta B. Matza, and Margaretta B. Moses, were living at the time of settlor's death in 1952. In accordance with the terms of the trust, trustee Farmers Trust Company then began making periodic income payments to each of the three children. Upon the death of settlor's child Margaretta B. Moses in 1979 the
present dispute arose between appellees, settlor's two surviving children and their children, and appellant Chester L. Moses, the sole child, by adoption, of Mrs. Moses.*fn1 Appellant seeks to succeed by representation to his mother's share of trust income.
The trustee filed a petition for declaratory judgment in the Court of Common Pleas of Cumberland County, Orphans' Court Division. The orphans' court concluded that the income distribution clause of the trust instrument demonstrates settlor's intent to benefit, in addition to her own children, only those grandchildren who are children of a child who died before her. Because appellant's mother was a child of settlor who died after settlor, the court held that appellant is not entitled to share in the distribution of income and that income is to be divided exclusively between the two surviving children. We disagree with the orphans' court and conclude that settlor intended income to be distributed to the children of each of her children who should die prior to the death of her last child, in accordance with her intent to treat each of her children's lines equally in the distribution of the trust.
The disputed paragraph of the trust instrument provides:
"AND IN FURTHER TRUST, at the death of said Fleeta Bosler Bashore, to pay the net income to her surviving children and to the children of her children who have previously died, in equal shares per stirpes, so long as any of her children is living, free from anticipation, and not subject to the claims or demands of any creditors or other persons whomsoever; and upon the death of her last surviving child, in trust to convey and transfer the corpus of the estate to her grandchildren per stirpes, the children of any deceased grandchild to take their parent's share; and in default of any child or other direct descendant surviving her, ...