Estate of Ogden, In re

• Decision Date: 25 June 1986
• Citation: 353 Pa.Super. 273,509 A.2d 1271
• Parties: 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.
• Court: Pennsylvania Superior Court

Page 1271

509 A.2d 1271

353 Pa.Super. 273

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.

Superior Court of Pennsylvania.

Argued Feb. 18, 1986.

Filed April 18, 1986.

Reargument Denied June 25, 1986.

[353 Pa.Super. 274] Stanley Yorsz, Pittsburgh, for appellants.

Before BROSKY, OLSZEWSKI and POPOVICH, JJ.

OLSZEWSKI, Judge:

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 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. ¹ 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 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 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.

                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
                

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 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 hereinafter named for the following uses and purposes only, to wit:

The said income shall be divided into eight equal shares or interests and the same shall be paid in one share or interest to each of the following children of my two nephews, WILLIAM T. DOM, JR., and JOHN M. DOM, to wit:

ANNA DOM CASTER ... a one one-eighth interest; to LELA DOM McKENNEY ... a one one-eighth interest; to MARY JANE DOM ... a one one-eighth interest; to WILLIAM DOM III ... a one one-eighth interest; to ISABELLE DOM LYNCH ... a one one-eighth interest; to CATHERINE DOM (McCarrell) ... a one one-eighth interest; to RACHEL DOM ... a one one-eighth interest; and to JOHN M. DOM, JR., ... a one one-eighth interest equally, share and share alike for and during their natural lives, and in the event that any of the said eight beneficiaries predecease the testatrix or die at any time after my decease, then, and in such event her or his equal share of the income of this trust shall be paid to her or his child or children of his or her body until the last of the said eight grandnieces and grandnephews shall die, and, in the event the youngest child of the said eight beneficiaries, and ROBERT MILLS DOM, son of ROBERT McCUNE DOM, deceased, has not reached the age of twenty-one (21) years, then, the trust shall continue, but each of the said children of the body of the nine beneficiaries shall receive an equal distributive share of the corpus of the trust, that is to say that the distribution shall be made per capita and not per stirpes, and the said ROBERT MILLS DOM shall share equally as one of the children of my grandnieces and grandnephews Reproduced record at 39a-40a.

upon the decease of the last survivor.

The trust, which was executed some two years and ten months prior to the will, contains the following language:

(b) After the death of the said ANNA W.M. OGDEN, all of the new income ... shall be paid to ANNA DOM CASTER ...; LELA DOM McKENNEY ...; MARY JANE DOM ...; WILLIAM T. DOM III ...; and ISABELLE DOM LYNCH ...; CATHERINE DOM (McCarrell) ...; RACHEL DOM ...; JOHN M. DOM, JR. ...; son of my nephew JOHN M. DOM, equally, share and share alike, for and during their natural lives, and in the event of the death of any one of the said eight (8) beneficiaries during the life or lives of any of the other beneficiaries hereinabove named, then and in such event her or his equal share of the income from this Trust shall be paid to her or his children; and in the event that the said beneficiary or beneficiaries may die for and during the life of this Trust, then to the heirs of their body until such time as all of the eight (8) beneficiaries shall die.

(c) In the event that any one or more of the said eight (8) beneficiaries as hereinabove named and designated shall die without heirs of the body, then and in such event his or her share shall go to the survivors who may then be living or, if dead, to the heirs of their body who may then be living, equally share and share alike, per stirpes and not per capita.

(d) After the death of all of said eight (8) beneficiaries as hereinbefore named, to wit, ANNA DOM CASTER, LELA DOM McKENNEY, MARY JANE DOM, WILLIAM T. DOM III, ISABELLE DOM LYNCH, CATHERINE DOM (McCarrell), RACHEL DOM AND JOHN M. DOM, JR., the income from said Trust shall continue to be paid to the children of the said beneficiaries or the survivors of them, until the youngest child of any one of the said beneficiaries shall arrive at the age of twenty-one (21) years, then all of the corpus of this Trust and any income in the hands of the TRUSTEE shall be divided among all of the said children of said beneficiaries equally, share and share alike, per stirpes and not per capita.... if the said real estate shall have been converted into cash, of the cash invested by the said Trustee then said children shall be paid his or her full share of the said Trust in cash, or in real estate as hereinbefore set forth when the youngest child of any one of said beneficiaries arrives at the age of twenty-one (21) years.

Reproduced record at 34a-35a.

The issue to be determined is raised by the decedent's use of the phrases "heirs of the body" and "children of the body." By choice of these phrases did the decedent, at the time of the creation of the trusts, intend only blood relatives to share as beneficiaries or was the intention to include adopted children? Taken alone, the language of the instruments is inconclusive, as is evidenced by the inconsistent, varying, and interchangeable use of the terms "heirs of the body" and "children." As the lower court points out "(t)he trust uses the phrase 'heirs of the body' in its various forms exactly three (3) times. The term 'child' or 'children,' unmodified, appears eight (8) times." Opinion of the lower court at 9. Decedent's will also refers to "children," "heirs of the body,"...