Appeal from the Final Order entered June 19, 1986 in the Court of Common Pleas of Luzerne County, Orphans' Court Division, No. 1089 of 1920. Appeal from the Decree June 19, 1986 in the Court of Common Pleas of Luzerne County, Civil at No. 539 of 1926.
Frank Townend, Wilkes-Barre, for appellant.
Cavanaugh, Olszewski and Montemuro, JJ.
[ 368 Pa. Super. Page 187]
This consolidated appeal arises from an order of the Court of Common Pleas of Luzerne County, Orphans' Court Division, denying appellant's exceptions to a decree nisi entered May 14, 1986. The order, dated June 19, 1986, made final the decree nisi which found appellees to be proper heirs and beneficiaries under three trusts established by two different wills. We affirm in part and reverse in part.
The three trusts involved in this appeal were established under the wills of Abram Nesbitt and Abram G. Nesbitt, who died in 1920 and 1926, respectively. Abram G. Nesbitt was the unmarried and childless son of Abram Nesbitt. Appellant is the natural son of Abram Nesbitt's grandson, Abram II. Appellees are the adopted children of Abram Nesbitt's other grandson, Samuel. [See "Nesbitt Family Tree" Exhibit "A" of this opinion.]
In 1919, Abram Nesbitt adopted his two minor grandsons after the death of their mother, Sarah Nesbitt Smythe. After adoption, the boys' names were changed to Abram Nesbitt II and Samuel Nesbitt. Abram Nesbitt died in 1920, survived by his unmarried and childless son, Abram G. Nesbitt and by his two adopted sons (grandsons), Abram II and Samuel.*fn1 In March, 1922, following the death of Abram Nesbitt, Abram II and Samuel were adopted for a second time, this time by Abram G. Nesbitt. Abram G. Nesbitt died in 1926, survived by his two adopted sons, Abram II and Samuel. Abram II died in 1982, survived by his natural son, appellant Abram Nesbitt, III. Samuel died in 1984 survived by his three adopted children, appellees Marie Lynch Nesbitt Stefenhagens, Samuel Nesbitt, Jr., and Frank McCormick Nesbitt.
Abram Nesbitt's will, executed on April 20, 1919, created a trust for his minor grandsons Abram II and Samuel. Article Third of the will established a residuary trust for
[ 368 Pa. Super. Page 188]
the maintenance and education of his "grandsons" until they reached age twenty-five. Thereafter, each would receive one half of the income and interest from the fund for life. The clause of the will now in issue provides that
[a]t the death of either or both of these grandsons leaving child or children or the issue of child or children him or them surviving all the said Fund including the accumulations so held shall descend to and vest absolutely in such child or children or the issue thereof taking the share of the parent (emphasis added).
Appellant contends that appellees, the adopted children of Samuel Nesbitt, should not receive any share of the Fund because it was not Abram Nesbitt's testamentary intent that they should share in his bounty.
Abram G. Nesbitt's will, executed on April 1, 1922, established a residuary trust for the maintenance and education of his "two adopted sons," Abram Nesbitt II and Samuel Nesbitt, until they reached thirty years of age. At that time, each would receive one half the interest or income from the fund for life. On June 5, 1923, Abram G. Nesbitt executed a codicil to his will wherein he established another trust, the "Bank Stock Trust," subject to the same terms and for the same uses as the residuary trust. The clause of the will controlling both trusts that is now at issue states that:
[f]rom and after the decease of either of my said adopted sons, leaving child or children, or issue of child or children, him surviving, and until twenty-one years after the decease of the survivor of my said adopted sons, to divide the net income arising from said residuary estate and accumulations into as many parts or shares as, at the time of each semi-annual or other convenient distribution of income, there shall be an adopted son of mine then alive, and an adopted son of mine then dead, represented by descendants then alive, or an adopted son or sons of mine then dead, represented by descendants then alive, and to subdivide the share falling to each set of descendants of an adopted son of mine then dead, amongst them
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per stirpes upon the principle of representation, and to pay over at each of said times of semi-annual or other convenient distribution, unto each adopted son and descendant of an adopted son who shall thus be found entitled, his or her share of said income.
Article Third, para. 4 (emphasis added). Appellant contends that appellees should not receive any income under either of the trusts because the words used by testator Abram G. Nesbitt evidenced an intent to exclude ...