No. 473 Philadelphia, 1982, Appeal from the Decree of the Court of Common Pleas, Orphans' Court Division, of Philadelphia County at No. 199 July Term, 1890.
William C. Bullitt, Philadelphia, for appellants.
Richard W. Stevens, Philadelphia, for Brunet, participating parties.
John R. Suria, Philadelphia, for Fidelity Bank, participating parties.
Alfred Wynne Putnam, Philadelphia, participating party, in propria persona.
Hester, Cavanaugh and Popovich, JJ.
[ 323 Pa. Super. Page 237]
On May 21, 1889, Charlemagne Tower, a wealthy industrialist and owner of coal lands, executed his last will and testament. He died shortly thereafter on July 24, 1889. His will was probated in Philadelphia County. A residuary trust was established under Mr. Tower's will and the trust continues. In the course of the last ninety-five years, twenty-three accounts have been filed in the Orphans' Court of Philadelphia County.
Under Item Fifth the testator gave his residuary estate to his trustees, in trust, to pay, after the death of his wife, which occurred several years ago, the income in equal shares to and among his five children, Charlemagne Tower, Jr. (now deceased), Deborah Taylor Lee, (subsequently Janney, now deceased), Emma Snyder (subsequently Reilly, now deceased), Henrietta Tower (subsequently Werts, now deceased) and Grace Tower Putnam (now deceased). Upon each of their deaths his estate was to be held in further trust, to pay income to and among the child or children surviving, and the issue of deceased children of the child so dying, per stirpes, for so long as the testator might prolong distribution of principal without violating the rule against perpetuities.*fn1 Testator provided for ultimate distribution of
[ 323 Pa. Super. Page 238]
principal which we are not concerned with at this juncture in the administration of the estate.
One of testator's grandchildren was Geoffrey Tower who died on March 26, 1957, and who was survived by his wife
[ 323 Pa. Super. Page 239]
who died on December 4, 1959 and by two blood children, Charlemagne Tower, IV and Helen Tower Brunet. Geoffrey Tower was also survived by two adopted children, Annette Tower Ragsdale (formerly Annette Tower Earl) and Tripp Tower. The sole question on appeal is whether Geoffrey Tower's adopted children, Annette Tower Ragsdale and Tripp Tower, are entitled to participate in the share of income that had been paid to their adoptive father during his lifetime. Since the death of Geoffrey Tower only his blood children have shared in the income.
The issue presently before this court has been raised and decided on prior occasions. It was originally raised in 1960 before the Orphans' Court of Philadelphia County. At that time, Judge Lefever in an adjudication approved by the court en banc found that the testator intended, at the time he wrote his will, to include only blood relatives in the class of those who ...