No. 80-3-422, Appeal from the Decree of the Court of Common Pleas of Philadelphia, Orphans' Court Division, dated January 16, 1980, at October Term of 1925, No. 3442.
Robert L. Bast, Philadelphia, for appellant.
Nicholas Kozay, Jr., Philadelphia, for C. Pasquet, et al.
John D. Iskrant, Philadelphia, for J. S. Huffer, et al.
Duffield Ashmead, III, Philadelphia, for H. Gates Lloyd and Provident Nat'l Bank.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.
Testator Lewis A. Riley died on April 23, 1925, leaving a will dated October 25, 1922, and a codicil dated June 3, 1924, establishing a trust from the residue of his estate. At issue on this appeal is whether appellees, two adopted children of one of testator's grandchildren, are entitled to share in the trust principal. We agree with the unanimous determination of the Orphans' Court Division of the Court of Common Pleas of Philadelphia that appellees are so entitled and, accordingly, affirm.
Item Fifth(d) of testator's will provides:
"When and as any grandchild of mine receiving income as aforesaid who may have been born in my lifetime, shall die, said Trustees shall pay over, transfer, and convey such part or share of the capital or principle of said Trust as may have been held as aforesaid for the use and benefit of such grandchild so dying, absolutely, clear of all trusts, per stirpes and by representation, unto the then living issue of such grandchild so dying as aforesaid . . . ."
Upon the death in 1977 of appellees' adoptive mother, Jean B. Croft, the trustees filed an accounting, recommending that the one-third share of trust principal from which Mrs. Croft had been receiving income be distributed to appellees pursuant to the above testamentary direction. Appellants, other grandchildren and great-grandchildren of testator, objected to the proposed distribution. They argued that testator's references to beneficiaries in other paragraphs of his will and codicil as "issue born . . . of children of mine" ...