Estate of Moss

• Decision Date: 02 March 1923
• Docket Number: 98-1922
• Citation: 80 Pa.Super. 323
• Parties: Estate of Rebecca Moss
• Court: Pennsylvania Superior Court

80 Pa.Super. 323

Estate of Rebecca Moss

No. 98-1922

Superior Court of Pennsylvania

March 2, 1923

Argued October 10, 1922

Appeal by Frank Moss and Commercial Trust Company, substituted Trustee for Florian Moss, from decree of O. C. Phila Co.-1900, No. 180, dismissing exceptions to adjudication in the Estate of Rebecca Moss, Deceased.

Exceptions to adjudication. Before Thompson, J.

The facts are stated in the opinion of the Superior Court.

The court dismissed the exceptions. Exceptants appealed.

Error assigned was the decree of the court.

Paul C Wagner, and with him Edward W. Madeira and Joseph S. Clark for appellants. -- The interest in remainder passing from Mary Moss to Frank Moss was contingent: 23 R. C. L., section 97, page 552; Stump v. Findlay, 2 Rawle 168; Waddell v. Rattew, 5 Rawle 231; Buzby's App., 61 Pa. 111; Stewart's Est., 147 Pa. 383; Massey's Est. 235 Pa. 289; Tatham's Est., 250 Pa. 269; Hildebrant's Est., 73 Pa.Super. 255.

J. Lee Patton, attorney for William F. Campbell, Register of Wills, and with him George Ross Hull, First Deputy Attorney General, and George E. Alter, Attorney General, cited: Patterson's Est., 247 Pa. 529; Bassett v. Hawk, 118 Pa. 94; Wenrich's Est. (No. 1), 62 Pa.Super. 257; Massey's Est., 235 Pa. 289; Gelm's Est., 61 Pa.Super. 228.

Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

KELLER, J.

Rebecca Moss died in 1899, leaving a last will and testament wherein she gave a portion of her estate to her executors in trust to pay the net income thereof to her brother, Florian Moss, during his life and upon his death directed that one-half thereof should be held in trust for the use of her brother, Frank Moss, " for his life and after his death to and among his children who may then be living, and the issue of such of them who may then be dead leaving issue, such issue, however, to take only such share as his, her or their parent would have taken if then living, but if my said brother Frank shall die either before or after me leaving no child or issue of a deceased child him surviving, then for the use of my brother, William Moss, his heirs and assigns."

William Moss, died, a widower, on October 29, 1907, and left all his property, by will, to his daughter, Mary Moss.

Mary Moss died, unmarried, on April 2, 1914, leaving a will by which she gave her residuary estate, which included whatever interest passed to her in the estate of her aunt, Rebecca Moss, to her uncle, the said Frank Moss.

Florian Moss, the first life tenant above-named died on August 28, 1921. An account was filed by the Commercial Trust Company, substituted trustee under Rebecca Moss's will as aforesaid. At the audit of this account Frank Moss, the second life tenant, asked that the half of said trust fund, given in trust for him during his life, should be paid to him, claiming that under the facts above recited he was entitled to the fund as life tenant and also as ultimate remainderman, since he was 84 years old, his wife was 76 years old, they had no children and he was now physically incompetent of procreation, and hence the prior remainder, to his children and their issue, had failed. The orphans' court awarded the fund to Frank Moss upon the entry of his own bond to protect the interests in remainder, but held it was subject to the payment of collateral inheritance tax. It appeared at the audit that collateral inheritance taxes had been paid in the estate of Rebecca Moss on both the life estates and the estate in remainder in 1900. The question raised by this appeal is whether the estate in remainder passing from Mary Moss, by her will, to her uncle, Frank Moss, is subject to such tax.

It was held in Gelm's Estate, 61 Pa.Super. 228, that a vested estate in remainder was taxable under our collateral inheritance tax laws, but the estate subjected to tax in that case was an unquestionable vested estate, vested for all purposes and by all standards, and passed an absolute right of future possession. The testator in that case gave his estate to his wife for life, and after her death to his four children, naming them. The estate passing to each child was absolute and subject to no contingency that could defeat it, and was certain to be enjoyed by the child or its representatives whenever the mother died. Such an estate at the death of one of the children was just as capable of certain and definite ascertainment for tax purposes as is a life estate. The estate in remainder created by Rebecca Moss's will is not of this absolute, certain and definite character.

The decisions in Pennsylvania, with respect to the nature of the remainder to William Moss -- whether vested or contingent -- are not uniform or in harmony.

Many of them hold that the remainder to William was equivalent to a vested estate subject to be divested by the death of Frank leaving issue. Among such are Etter's Est., 23 Pa. 381; Kelso v. Dickey, 7 W. & S. 279; Hopkins v. Jones, 2 Pa. 69; Bassett v. Hawk, 118 Pa. 94; and the late cases: Patterson's Est., 247 Pa. 529; Roney's Est., 227 Pa. 127; Neel's Est., 252 Pa. 394; Packer's Est. (No. 2), 246 Pa. 116; Wenrich's Est., 62 Pa.Super. 257. But even these cases recognize that such an estate is not absolutely vested or invariably fixed in the remainderman but is subject to be defeated by the happening of the contingency provided for in the prior remainder to Frank's children; in other words, that the interest bequeathed William is contingent. Thus in Kelso v. Dickey, supra, the court said (p. 284): " The contingency on which the legatees over were to take was not a contingency annexed to their capacity to take; such, for example, as their living to a certain time; but an event independent of them, and not affecting their capacity to take or transmit the right to their representatives; and such a contingent interest has frequently been decided to be vested so as to be transmissible to representatives." In Hopkins v. Jones, supra, it was held that the second remainder was vested to the extent that it was transmissible to the remainderman's representatives upon her death before the life tenant. The court said: " There is no contingency here that affects the transmissibility. There is a contingency which affects the right of Rebecca J. Rutter ever to take, but none that affects the vesting of her right or possibility, so as to pass to her representatives on her death, before the contingency happens." In Bassett v. Hawk, supra, the court said: " It is true the remainder was in abeyance, and so remained, until the decease of the life tenant, but as was said in Kelso v. Dickey, 7 W. & S. 279, the contingency was not attached to the capacity of the remaindermen to take, but to an event independent of, and not affecting either their capacity to take, or to transmit the right to their representatives." The contingency or uncertainty of such an interest is expressly recognized in Roney's Est., supra; Neel's Est., supra; Patterson's Est., supra, and many other kindred cases.

On the other hand there are many decisions which hold, as the writer thinks, to the more scientific view, that a remainder such as is created in this will is a contingent remainder with a double aspect or on a double contingency. These cases, for the most part, were concerned with the character of the estates in remainder before the particular estate was determined, and without regard to their transmissibility by will or descent.

Thus in Stump v. Findlay, 2 Rawle 168, there was a devise to testator's son John during his natural life and after his death, if he died leaving lawful issue to his heirs as tenants in common; but if John died without leaving lawful issue, then to his son James, his heirs and assigns. The Supreme Court held both remainders to be contingent and that neither could become vested until the death of the life tenant. In Waddell v. Rattew, 5 Rawle 231, there was a devise to A. during the term of his natural life; if he should have issue of his body lawfully begotten, then to such issue; in case he should die without leaving such issue, then to all the rest of testator's children. It was held that the ulterior limitation to the rest of testator's children was contingent. In Buzby's App., 61 Pa. 111, 115, the court said: " Thus a limitation to A. for life, remainder to his issue in fee, and in default of such issue, remainder to B., the remainder to B. is good as being collateral to the contingent fee in the issue; it is not a fee mounted upon a fee, but it is a contingent remainder, with a double aspect, or on a double contingency." In Dunwoodie v. Reed, 3 S. & R. 435, a clause similar to this one was held to create concurrent contingent remainders or a contingency with a double aspect and the court said: " Where both [remainders] are limited alternately on the same event, by the happening of which one is to vest in exclusion of the other, there both are contingent remainders." p. 452. The court followed the English case of Loddington v. Kime, 1 Lord Raymond 209, 1 Salkeld 224, which it cited as " of unquestionable authority," (p. 441), where there was a devise to Evers Armyn for life and in case he should have any issue male then to such issue male and his heirs forever, and if he should die without issue male, then to Sir Thomas Barnardiston and his heirs forever, and it was decided that Evers Armyn took for life with a contingent remainder to his issue male in fee and that the limitation to Sir Thomas Barnardiston was a contingent remainder not contrary to or derogatory from the effect of the former but by way of substitution for it. The ruling in Loddington v. Kime was confirmed by the House of Lords in Barnardiston v. Carter, 2 Brown's Parliamentary Cases 1, where the same will...