Flinn's Estate

• Decision Date: 17 July 1978
• Citation: 479 Pa. 312,388 A.2d 672
• Parties: ESTATE of William FLINN, Deceased. Appeal of Patricia P. DUFFY and Isabel P. Eaton. Appeal of Louise Flinn WAINWRIGHT, George H. Flinn II, Lawrence Flinn Jr., Michael deV. Flinn, and Mary Louise Flinn Davidson.
• Court: Pennsylvania Supreme Court

Page 672

388 A.2d 672

479 Pa. 312

ESTATE of William FLINN, Deceased.

Appeal of Patricia P. DUFFY and Isabel P. Eaton.

Appeal of Louise Flinn WAINWRIGHT, George H. Flinn II,

Lawrence Flinn Jr., Michael deV. Flinn, and Mary

Louise Flinn Davidson.

Supreme Court of Pennsylvania.

Argued March 13, 1978.

Decided June 5, 1978.

Reargument Denied July 17, 1978.

Guy L. Warman, John Michael Studeny, Pittsburgh, for appellant at No. 89.

Cuthbert H. Latta, Philadelphia, for appellant at No. 93.

Raymond R. Goehring, Jr., Robert W. Beilstein, Goehring, Ruttter & Boehn, Pittsburgh, for appellees at No. 89.

Raymond R. Goehring, Jr., Robert W. Beilstein, Goehring, Rutter & Boehn, Pittsburgh, for appellees at No. 93.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

In a will executed in 1923, testator William Flinn, after making certain bequests, devised two and one-half per cent of the residue of his estate to his sister and a charitable institution and divided the balance of the residue among his six children. George H. Flinn, testator's eldest son, was to receive his share outright. A. Rex Flinn, William Arthur Flinn and Ralph E. Flinn, testator's other sons, were each to receive a portion of his share outright and the balance held in trust. Testator's two daughters, Mary Flinn Lawrence and Edith Flinn Patterson, were to receive their shares entirely in trust. Testator died in 1924.

The trust for Mary Flinn Lawrence, which closely resembled those for the other four children for whom testator created trusts, specified:

"(c) To pay to my daughter, Mary Flinn Lawrence, the income on sixteen and one-fourth per centum (16 1/4%) of said residue of my estate during her lifetime, to be paid per quarterly. At her death her husband shall receive out of said income Four Thousand ($4,000.00) Dollars each year, payable quarterly, during his lifetime or until he again marries. The balance of said income shall be paid to her children, share and share alike, and at the death of her husband or when he remarries, the whole of said income shall be paid to her children, share and share alike, until the youngest child becomes twenty-one years of age, when the principal of said sixteen and one-fourth per centum (16 1/4%) of said residue of my estate shall be equally divided among her children, and the children of any of her deceased children shall take in equal shares the share to which their respective parent would be entitled. In case my said daughter, Mary, shall die without issue the principal of said sixteen and one-fourth per centum (16 1/4%) of the residue of my estate, subject to the yearly payment of my daughter's husband during his lifetime, or until he remarries, shall go to her brothers and sisters in equal shares; the children of any deceased brother or sister taking in equal shares the interest of their respective parent."

Mary Flinn Lawrence, the last surviving child of testator died in 1974. She never gave birth but adopted appellee John Lawrence, Jr. in 1938, when John was four years old, and appellee William Flinn Lawrence in 1941, when he also was four years old. When Mary Flinn Lawrence's children sought to take under the will as her "children," appellants, natural-born grandchildren and greatgrandchildren of testator by his other children, objected. ¹ They argued that adopted children were ineligible beneficiaries and that Mary Flinn Lawrence's share of the estate should pass under the provision channeling it to the children of her deceased brothers and sisters if she should "die without issue."

A similar dispute arose in 1964 when testator's son William Arthur Flinn died leaving only an adopted son. The orphans' court ruled in 1966 that because the will did not expressly extend trust benefits to adopted grandchildren, the adopted child of William Arthur Flinn was not entitled to take under the will. William Arthur Flinn's share was distributed to testator's surviving children and testator's grandchildren of deceased children as provided in a trust provision similar to that in the trust for the benefit of Mary Flinn Lawrence. Although Mary Flinn Lawrence did not participate in the adjudication determining the rights of William Arthur Flinn's adopted son, as a child of testator she received a portion of William Arthur Flinn's share. She used the proceeds of the distribution to establish an inter vivos trust for the benefit of her two children.

The auditing judge determined that appellees, the two adopted children, were eligible beneficiaries under testator's will and directed distribution to them in equal parts. Appellants filed exceptions on the grounds that 1) testator's will expressed an intent to exclude adopted grandchildren; 2) even if the will did not demonstrate a clear intent to exclude, the applicable canon of construction requires exclusion of adopted grandchildren because they were not expressly included; and 3) appellees are barred by the doctrine of collateral estoppel from litigating their eligibility when they benefited from the earlier adjudication denying the right of an adopted grandchild to take under the will. The orphans' court en banc denied these contentions and affirmed the decree of the auditing judge. We affirm. ²

In Estate of Sykes, 477 Pa. 254, 383 A.2d 920 (1978), this Court stated:

" 'It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator.' Hamilton Estate, 454 Pa. 495, 498, 312 A.2d 373, 374 (1973); accord, Blough Estate, 474 Pa. 177, 378 A.2d 276 (1977); Hill Estate, 432 Pa. 269, 247 A.2d 606 (1968). . . . The intent of a testator must appear with reasonable certainty, such that there can be little doubt of his intent. If, from the language of the document, the scheme of distribution, and the relevant facts and circumstances, a court cannot determine a testator's intent with reasonable certainty, it must resort to canons of construction. E. g., Schappell Estate, 424 Pa. 390, 227 A.2d 651 (1967); Houston Estate, 414 Pa. 579, 201 A.2d 592 (1964)." (footnote omitted).

Id. at 257, 383 A.2d at 921.

Testator's will does not disclose his intent with reasonable certainty. The bequest to Mary Flinn Lawrence directed that the "balance of said income shall be paid to her children," "divided equally among her children," and that "the children of any of her deceased children shall take in equal shares." It provided that her share should pass to her brothers and sisters if she should "die without issue." This language does not expressly include or exclude adopted grandchildren. Estate of Sykes, supra ("issue"); Taffel Estate, 449 Pa. 442, 296 A.2d 797 (1972) (plurality opinion) ("children").

The scheme of distribution also does not reveal testator's intent. Appellants argue that testator revealed his intent to discriminate against " strangers to the blood" by discriminating among his own children. It is true that one of testator's children was to receive his share outright while the others were to receive their shares in varying degrees in trust, but this scheme is irrelevant to whether testator intended to exclude grandchildren adopted after his death. Similarly, appellants contend that it is significant that testator made no gifts of principal to "strangers to the blood" except to a charitable institution. This fact does not speak to the question whether testator sought to exclude adopted grandchildren. When testator was willing to bestow his bounty upon an institution, it seems at least as likely that he would desire to pass his estate to his children's children, whether natural-born or adopted.

Nor do the circumstances surrounding execution of the will reveal testator's intent. Appellants emphasize that at the time of execution of the will, testator had six living children, all natural-born and all married, and eight grandchildren, all natural-born, and that two of testator's children were childless, including Ralph, whose wife was then 61 years old and therefore not likely to bear children. From these circumstances, appellants conclude that testator must have considered the possibility that some of his children would not bear children, and that his failure expressly to provide for adopted children reveals his intention to exclude them. Properly viewed, these circumstances do not disclose testator's intent. It is equally plausible that, because none of testator's children had adopted children, testator gave no thought to the possibility of adopted children or that, because testator knew that two of his children were childless, he directed his attention to the matter and deliberately used language broad enough to include grandchildren adopted after execution of the will. See Estate of Sykes, supra.

Appellants also argue that the prevalent legal interpretation of " children" and "issue" under the Wills Act of 1917, Act of June 7, 1917, P.L. 403, § 16(b), 20 P.S. § 228 (1950), in force at the time of execution of testator's will, included natural-born children only and that testator knew and relied on that interpretation. That Act provided:

"Whenever in any will a bequest or devise shall be made to the child or children of any person other than the testator, without naming such child or children, such bequest or devise shall be construed to include any adopted child or children of such other person who were Adopted before the date of the will, unless a contrary intention shall appear by the will." (emphasis added).

Id. In Estate of Sykes, supra, and Tafel Estate, supra, we held that where a will executed under the 1917 Wills Act does not disclose an intent to the contrary, a bequest to "children" or "issue" is construed to include children adopted after the date of the will. Appellants argue that this canon of construction cannot apply to testator's will because it was executed in 1923 while the wills in Sykes and Tafel were executed in 1935 after...