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ESTATE ANNA W.M. OGDEN (04/18/86)

filed: April 18, 1986.

IN RE ESTATE OF ANNA W.M. OGDEN, DECEASED. APPEAL OF WILLIAM T. DOM, III, ESQ.; LELA DOM MCKENNEY; JANE C. SWEENEY; DANIEL L. CASTER; EDWARD CHARLES DOM; RICHARD MCCULLOUGH DOM; WILLIAM T. MCKENNEY; ROBERT W. MCKENNEY, JR.; WILLIAM T. DOM, IV; DENNA OGDEN DOM; GEORGE BYERS DOM, BENEFICIARIES UNDER THE WILL AND THE TRUST OF ANNA W.M. OGDEN, DECEASED. IN RE ESTATE OF ANNA W.M. OGDEN, DECEASED, TRUST FOR ROBERT MILLS DOM. APPEAL OF WILLIAM T. DOM, III, ESQ.; LELA DOM MCKENNEY; JANE C. SWEENEY; DANIEL L. CASTER; EDWARD CHARLES DOM; RICHARD MCCULLOUGH DOM; WILLIAM T. MCKENNEY; ROBERT W. MCKENNEY, JR.; WILLIAM T. DOM, IV; DENNA OGDEN DOM; GEORGE BYERS DOM, BENEFICIARIES UNDER THE WILL AND THE TRUST OF ANNA W.M. OGDEN, DECEASED


Appeal from the Order of June 25, 1985, in the Court of Common Pleas of Westmoreland County, Orphans No. 627 of 1950. Appeal from the Order of June 25, 1985, in the Court of Common Pleas of Westmoreland County, Orphans No. 112 February Term 1951.

COUNSEL

Stanley Yorsz, Pittsburgh, for appellants.

Brosky, Olszewski and Popovich, JJ.

Author: Olszewski

[ 353 Pa. Super. Page 274]

This action was initiated by petitions for distribution filed by the trustee of the inter vivos and testamentary trusts of Anna Ogden, decedent. The court below determined that persons in the class of beneficiaries could not be excluded

[ 353 Pa. Super. Page 275]

    from distribution because they had been adopted into the class and not born into it. We agree.

Anna Ogden died on July 23, 1950. On December 31, 1941, she had entered into an irrevocable trust agreement, which has been properly recorded. Decedent also left a will dated November 4, 1944, which was duly probated and is of record. The trust and the will provide for distribution of income among eight named grandnieces and grandnephews. The deaths without issue (natural or adopted) of two of the named beneficiaries reduced the distribution from eighths to sixths. Catherine Dom McCarrell, one of the named beneficiaries who was receiving income from the trust, died on October 25, 1982. She is survived by her children -- Malcolm W. McCarrell, born November 25, 1950, and adopted April 4, 1952; and Rachel McCarrell McCune, born March 15, 1952, and adopted February 16, 1953.*fn1 By petitions for distribution, the trustee requested the court to determine who is entitled to the distribution of income previously paid to Catherine Dom McCarrell.

The question before us is whether the children of Catherine Dom McCarrell are entitled to her one-sixth share of income from the trusts, as the children of the other named beneficiaries are entitled to their parents' share of income

[ 353 Pa. Super. Page 276]

    upon their parents' demise, or are prohibited from receiving their mother's share because they were adopted by her and not born to her. The lower court answered this question in favor of the adopted children of Catherine Dom McCarrell. Appellants make two allegations of error. Initially, appellants urge us to find that the trial court erred in holding that adopted children are members of a class of beneficiaries described in the will and trust of Anna Ogden as "children" and "heirs of the body." Appellants also argue that the intent of Anna Ogden to exclude adopted children is apparent from the words of the will and trust, and that it was error for the court to resort to statutory rules of interpretation to conclude otherwise. These arguments are without merit.

The issues appellants raise attempt to assign meaning to an entire will and trust document on the basis of words and phrases pulled from their context and isolated from their textual setting. When subject to such extraction, words lose their efficient utility. They are no longer expressive of the will of their author. Any attempt to interpret the decedent's intent mandates consideration of all the language contained in her will and trust. In re Estate of MacFarlane, 313 Pa. Super. 397, 401, 459 A.2d 1289, 1291 (1983); In re Bowman's Estate, 332 Pa. 197, 2 A.2d 725 (1938) (court determining settlor's intent, regarding will provision creating trust, cannot restrict itself to single word used in will, but must examine entire instrument). Additionally, the words of the instruments are not viewed in a vacuum. They gain content from decedent's scheme of distribution and the facts and circumstances that surrounded her when the instruments were made. See, e.g., MacFarlane 313 Pa. Super. at 401, 459 A.2d at 1291.

We begin our inquiry by setting forth those portions of the documents bearing on decedent's trusts. The will reads:

THIRD -- All of the balance of the contents of my house and garage shall be divided equally among all the remaining children of WILLIAM T. DOM, JR., or, if any of the

[ 353 Pa. Super. Page 277]

    said children be dead, to the heirs of their body and where they have no heirs of their body, then among the surviving children, share and share alike . . . .

FOURTH -- I give and bequeath to BRIAN OGDEN LYNCH, the adopted son of my grandniece, ISABELLE LYNCH, the sum of ONE THOUSAND ($1,000.00) DOLLARS . . . .

All the rest, residue and remainder of my estate, either real, personal or mixed and wheresoever situate, I give, devise and bequeath to BARCLAY-WESTMORELAND TRUST COMPANY of Greensburg, Pennsylvania, my Trustee ...


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