Wharton Appeal
Wharton Appeal
Dissenting Opinion
Dissenting Opinion by
The interpretation which this court places upon the testamentary writing here involved works to the obvious impairment of the appointment made by one of the testator’s three sons. If that is what the testator intended, it would of course be an end of the matter. But such is not the case. The rationale of the construction adopted by the learned court below, and now approved by this court, rests upon what I take to be a patent misconception of the purpose and import of the proviso in Item Two of the testator’s Seventh Codicil with respect to the distribution of the one-half of the “appointed estates” after the expiration of twenty-one years from the testator’s death during which period the income from such portion was payable to the testator’s widow.
The scheme of the Seventh Codicil (which is all that this ease is concerned with) was to make an identical disposition of the testator’s own residuary estate (in Item One) and the estates over which he had powers of appointment (in Item Two), Thus, in Item Two, he devised and bequeathed to his trustees the estates over which he had powers of appointment “upon the trusts and for the purposes and in the manner set forth in Item One of this codicil with respect to my residuary estate . . . .” To that, he appended a proviso that the trust of the portion of the “appointed estates” under Item Two for the benefit of the widow was to terminate not with her death, as in the case of the similar trust for his wife’s life under Item One, but twenty-one years from the death of the testator. This
Not only does the majority’s interpretation of Item Two thus ignore the evident scheme of Item One and Item Two of the Seventh Codicil but it also produces an inequality adverse to Samuel in respect of his exercise of the power of appointment conferred by the testator upon Samuel and his brothers alike. Such an intent is manifestly foreign to what the testator’s will and various of his many codicils plainly evidence. Throughout, equality of interest among his sons or their representatives was the testator’s guiding beacon. See, for example, the Fourth Codicil of April 9, 1929, where, after giving Samuel $10,000 absolutely, he explained that “in order that the shares of all my said sons shall be equalized I make this provision for my said son, S[amuel] Brinton Wharton” (Emphasis supplied) ; or paragraph two of Item One of the Seventh Codicil where the testator, out of his own residuary estate, equalized Samuel for bequests which Samuel’s brothers had received under the will of their grandfather, Charles W. Wharton, Samuel apparently not having been in being when that will was executed.
The result produced by the majority’s interpretation is, moreover, attended by glaring' incongruities which are allowed to arise because of no more than the fortuity of Samuel’s relatively early death. He was a minor in 1925, as his father’s will of March 11th of
The thing whereon the construction, which the majority approves, is based is the clause in the proviso in Item Two which states that, upon the termination of the trust for Amelia after twenty-one years from the testator’s death, the principal was to be distributed and paid over to the persons “who would then be entitled to receive the income from said trusts if my said wife were then deceased . . . .” The purpose of this provision, as evidenced by the testator’s indicated fear
Nor is it to be overlooked that, while the clause in question contemplates distribution of the principal to those entitled to receive the income, such persons were to receive the principal (the trust being terminated by Amelia’s assumed death) “ in the same proportions in lohich the income would be received by them in such case” (Emphasis supplied). It is plain enough, under the scheme of the testator’s Seventh Codicil, ■ that
' The mere-fact that Joseph Lovering Wharton gave his sons general, and' not special, powers of appointment over their , respective .trust allocations of both his residuary estate and-the .“-appointed estates” sufficiently answers.-the .-suggestion .that perhaps Joseph wished
I would reverse and remand for the entry of a decree awarding to Samuel’s widow, Katherine, by virtue of his absolute appointment, one-third of the one-half of the “appointed estates” held in trust for the testator’s widow, Amelia, for the twenty-one year period immediately following his death.
Opinion of the Court
Opinion by
The single question raised by the three appeals, which were argued together, concerns the exercise of powers of appointment by Joseph S. Lovering Wharton (hereinafter called Joseph, Sr.), in his own will, of appointive trust estates under the respective wills of his first wife’s father, of his first wife, of his maternal grandfather and of his mother.
Appellant is Katherine O. Wharton, widow and appointee under the will of her deceased husband, Samuel Brinton Shoemaker Wharton, a son of Joseph, Sr. Under the will of Joseph, Sr., Samuel was given a testamentary power of appointment over the corpus of his share of the appointive estates. Upon the death of appellant’s husband in 1943, she received, under the power of appointment given her husband, the share of corpus which was then due. Appellant contends, however, that at the termination of the trusts in 1952, she is also entitled to receive the distributive share of corpus of Samuel’s trust estate as one of the “persons . . . who would ... be entitled to receive the income” from the appointed trusts under the will of Joseph, Sr. The Orphans’ Court of Philadelphia County decided that she was not so entitled and awarded such corpus to the persons who were, at the termination of the trusts, entitled to receive income. The appeals followed.
The. principles of law involved are plain. The factual situation is complicated because of the necessary
The provisions of the various appointive trust estates may be thus summarized: WASHINGTON BROWN, the father of Joseph, Sr.’s first wife, Charlotte, died January 21, 1869. He bequeathed a fund in trust for his daughter Charlotte and gave her a testamentary power of appointment. Charlotte appointed a portion of the corpus for the use of her husband, Joseph, Sr. and gave him a testamentary power of appointment. The fund amounted to $38,058.63. JOSEPH S. LOVERING (maternal grandfather of Joseph, Sr.) died May 8, 1881. He gave a testamentary power of appointment to his daughter, Mary L. Wharton (mother of Joseph, Sr.) over principal which amounted to $72,405.91. The daughter died July 1, 1891, and gave a power of appointment to her son, Joseph, Sr. CHARLOTTE BROWN WHARTON (the first wife of Joseph, Sr.) died September 10, 1886. She created a trust under her will, wherein she gave her husband, Joseph, Sr. a testamentary power of appointment over a trust fund of her individual estate which amounted to $18,-352.11. (This is exclusive of the trust fund under Charlotte Brown Wharton’s father’s will above recited ).
JOSEPH, SR. (Joseph S. Lovering Wharton) possessed of an individual estate and also of the testamentary powers of appointment under the trusts above recited, died March 11, 1931. By item two of the seventh codicil of his will, he exercised the testamentary powers of appointment in this language: . . I give, devise and bequeath the said estates over which .1 have such powers to my Trustees hereinbefore named, and the survivors or survivor of them, and their successors,
As part of the exercise of the various testamentary powers of appointment, Joseph, Sr. directed that in the -event that the trusts continued until twenty-one
Samuel, the son, who was appellant’s husband, died December 13, 1943, leaving no issue. He appointed to his wife, appellant, the corpus of his share absolutely. At this date in 1943 the twenty-one years had not yet expired. The trusts had not then terminated and were active. Appellant received (in 1943) one-half of one-third of Joseph, Sr.’s individual residuary trust estate. At Amelia’s decease she will also receive a similar distribution of the remaining half. Joseph, Sr.’s gross estate amounted to $877,972.38 and his residuary estate to $340,608.97, according to the Montgomery County records where the account of the executors was audited and the estate distributed. Appellant also received in distribution in 1943 from the appointed trusts the share of her husband, one-half of oné-third, which was not subject to the life estate of Amelia. Had the
But under the provisions of the clause of termination, Amelia’s life estate was revoked, as were the sons’ and grandson’s powers of appointment. At such termination the corpus was given to those persons who were then receiving the income. The dispute is over this portion, being a half of one-third of the appointed estates on which Amelia had theretofore enjoyed a life estate, but which life estate was later revoked and the corpus directed to be paid to Joseph, Sr.’s other two sons and grandson to the exclusion of appellant.
Possessing a general power of appointment, Joseph, Sr. could cut down or revoke any absolute interest which he had theretofore given his appointees. We agree that such subsequent provisions require clear and unambiguous language: Hayden’s Estate, 334 Pa. 403, 6 A. 2d 581; Harris Estate, 351 Pa. 368, 41 A. 2d 715; Keefer Estate, 353 Pa. 281, 45 A. 2d 31; O’Reilly Estate, 371 Pa. 349, 89 A. 2d 513; Fink v. Stein, 158 Pa. Superior Ct. 464, 45 A. 2d 249. But the words of the proviso are clear and are not ambiguous. The expression of intent is unmistakable. His plain direction was the termination of the trusts at the expiration, of twenty-one- years, the revocation of his wife Amelia’s life estate, and the revocation of the powers of appoint-, ment given to his-sons-and grandson, He specifically stated, and therefore must have intended,-that the then recipients of income should be substituted as recipients of -their proportionate-shares of- corpus. • -. ■
Appellant contends dhat because.-she received corpus in-1943 as appointee of-her husband- Samuel,.she thereafter-receijed-income on spch distributed corpus, :and therefore possessed -the status, of ;a person “who would-
Appellant also contends in effect that a will must be read and considered from its four corners. When so considered she points out that the general or overall scheme and purpose which “oozes from every pore of the Will”, indicates that Joseph, Sr. intended equality by his appointment and that any son or the grandson was entitled to income for life and at his death possessed a testamentary power of appointment over the corpus of his share. The principle of presumed equality applies only when the language is lacking in clarity and its meaning is uncertain: Davis’s Estate, 346 Pa. 247, 29 A. 2d 700; Friday’s Estate, 150 Pa. Superior Ct. 352, 28 A. 2d 332. Joseph, Sr. unquestionably did intend equality but ONLY until the proviso became effective. The proviso revolted the life estate of his wife Amelia and terminated the trusts as well as the powers of appointment. But in language crystal clear, Joseph, Sr. directed the distribution of corpus except that already distributed, “. . . to the persons, other than my wife, Amelia Bird Shoemaker Wharton, who would then be entitled to receive the income from said trusts if my said wife were then deceased. . . .” Appellant maintains that because the general scheme was an equal distribution Joseph, Sr. did
Upon first consideration it may appear incongruous for Joseph, Sr. to direct that at the expiration of twenty-one years from his death the trusts should terminate, his wife’s life estate be revoked and the corpus paid to income beneficiaries but not to give a proportionate share of corpus to the appointee of a deceased son. We agree with the able and eloquent counsel for appellant that “The purpose of the proviso was to avoid a perpetuity.” We surmise, but do not decide (because this is not before us), that the proviso was motivated by such thought. This illuminates the likely reason for such proviso. The appointed estates were erected respectively in 1869, 1881, 1886 and 1897, the first eighty-three years, the last fifty-five years, and all the appointments of Joseph, Sr. twenty-one years ago. The time fixed by Joseph, Sr. for the ter
A testator is not required to make an equal division of his estate. He may exclude any one whom he wishes, except a surviving spouse. The reason for the exclusion need not be stated by testator and will not be passed upon by a court. The present testamentary direction in the proviso was expressed in plain and unambiguous language. The will and all the codicils
The definitive decrees of distribution in each of the three estates, viz.: Joseph S. Lovering, deceased, Char
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