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ESTATE JOSEPH HENRY ZERBEY (03/25/83)

filed: March 25, 1983.

ESTATE OF JOSEPH HENRY ZERBEY, DECEASED. APPEAL OF JOSEPH HENRY ZERBEY, IV AND HARRY ZERBEY, EXCEPTANTS


No. 233 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Orphans' Court Division, of Schuylkill County at No. 18 at P. 655.

COUNSEL

David Pittinsky, Philadelphia, for appellants.

J. Brooke Aker, Norristown, for participating parties.

Cavanaugh, McEwen and Hoffman, JJ.

Author: Cavanaugh

[ 313 Pa. Super. Page 299]

This is an appeal from a final decree of the Orphans' Court Division of the Court of Common Pleas of Schuylkill County dismissing exceptions to the court's adjudication which confirmed the trustees' accounts. The court also dismissed the exceptants' petitions for allowance of counsel fee filed by various family members but these exceptions are not part of this appeal.

On August 19, 1932, Joseph Henry Zerbey (hereinafter referred to as testator) who was then seventy-four years of age and possessed of a substantial estate, executed his will. At that time his heirs consisted of three daughters, Frances Zerbey Braun, Elizabeth Zerbey Martz and Mildred Zerbey Lazarus, one son, Joseph Henry Zerbey, Jr., and one grandchild, Joseph Henry Zerbey, III, the son of Joseph Henry Zerbey, Jr. On January 1, 1933, another grandchild of testator was born, Johanna Zerbey Martz, the daughter of Elizabeth Zerbey Martz. The family tree as to issue was thus constituted when testator died on February 2, 1933. After testator's death two more grandchildren were born, Uzal Martz, Jr. (the son of Elizabeth Zerbey Martz) born on October 20, 1934, and Margareta Lazarus (now Margareta Lazarus Paduch) who was the daughter of Mildred Zerbey Lazarus, born on August 12, 1935.

The testator's will under paragraph NINTH(c) and (d) established two trusts referred to in his will as the "Newspaper Trust" and the "Union Hall Trust".*fn1 The income

[ 313 Pa. Super. Page 300]

    from the two trusts was to be divided into five shares, one share for each of his four children whom he identified by name and one share for his grandchildren "said share to be subdivided among all of my grandchildren in equal shares, including any grandchildren born after my death". Testator also provided that upon the death of any of his children the income from the two trusts was to be divided into equal shares with one share for each of his then living children and one share for his grandchildren.*fn2 The trusts are to terminate at the death of his last surviving child and the principal is then to be distributed to his living grandchildren in equal shares.*fn3 The will also provided that if at the death

[ 313 Pa. Super. Page 301]

    of his last surviving child there were no grandchildren then surviving that the trust should be distributed in accordance with the intestate laws of Pennsylvania.

At testator's death he was survived by his four children and two grandchildren. Joseph Henry Zerbey, Jr., testator's only son died on February 16, 1945 and his son (testator's grandchild) Joseph Henry Zerbey, III died on July 3, 1958. The children of Joseph Henry Zerbey, III, namely testator's great-grandchildren, Joseph Henry Zerbey, IV, and Henry Zerbey are the appellants herein. Testator's daughter, Frances Zerbey Braun, died on October 27, 1975, leaving no issue surviving. Testator's other two children, Elizabeth Zerbey Martz and Mildred Zerbey Lazarus, still survive.

Upon the death of Joseph Henry Zerbey, III, in 1958 at the age of 41 the trustees did not distribute any income among the testator's great-grandchildren but rather continued income distribution with one equal share for each living

[ 313 Pa. Super. Page 302]

    child and one equal share for grandchildren. In July, 1980, the appellants presented their claim to the Orphan's Court Division for the first time that they are entitled to their deceased father's share of income.*fn4

In this appeal we are involved with the narrow question of whether testator intended to use the term "grandchildren" when referring to income to include issue of a deceased grandchild. Our Supreme Court stated in ...


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