Appeal from the Decree in the Court of Common Pleas of Philadelphia County, Orphans Division, No. 96 July Term 1917
A. Bruce Niccolo, Devon, for appellant (at 1637).
William C. Bullitt, Philadelphia, for appellant (at 1620).
Tamilia, Lipez and Shiomos,*fn* JJ.
[ 343 Pa. Super. Page 536]
This is an appeal from the decree dismissing the exceptions of Barbara Harrison Johnson and sustaining those of Suzanne Ketcham Bornstein, adoptees of, respectively, a daughter and son of the testatrix, Ida Graham Ketcham. The issue before us is whether said adoptees are entitled to share in the distribution of income and principal from a testamentary trust. We affirm.
The facts as clearly delineated in the Opinion Sur Exceptions to Adjudication filed May 8, 1984 are as follows:
Testatrix, by will dated April 11, 1911, had left the residue of her estate in trust for the benefit of her three children, Walter Russell Ketcham, Eleanor H.G. Ketcham (now Harrison) and B. Graham Ketcham. One-third of the income was to be paid to each of them for life. Upon the death of a child, that share of income was to be paid to the issue, if any, of the deceased child until the trust terminated. If a child died without issue, then that share of income was to be divided among the surviving children or issue of deceased children until the trust terminated. The trust terminated upon the death of the last surviving child and at that time, principal shall be distributed "among my grandchildren by representation", and upon failure of issue of the three children, then to the children of the brothers and sisters of testatrix. The trust has now terminated.
Walter Russell Ketcham died first without issue. B. Graham Ketcham died next survived by one natural child, Eleanor Graham Robb, and one adopted child, Suzanne Ketcham Bornstein, who is one of the exceptants. Suzanne was born on March 3, 1946 and was adopted by B. Graham Ketcham and his wife on January 23, 1948.
[ 343 Pa. Super. Page 537]
Eleanor H.G. Harrison died last on April 30, 1979 without natural born issue. However, on November 6, 1978, when she was 85 years of age, Eleanor made application to adopt Barbara Harrison Johnson, the other exceptant herein, who was then married and 56 years of age. The adoption decree was signed by a Connecticut court on [December 21, 1978], and, subsequently, amended on June 11, 1980 after the death of Eleanor.
At the audit, the trustee contended that since Suzanne had been adopted while an infant by testatrix's son, she was entitled to share in trust income and principal equally with her adoptive sister, Eleanor Robb. The trustee also maintained that Barbara Johnson, who had been adopted at age 56 by ...