In re Dickson's Estate
| Decision Date | 24 May 1954 |
| Citation | 378 Pa. 48,105 A.2d 156 |
| Parties | In re DICKSON'S ESTATE. Appeal of DICKSON. |
| Court | Pennsylvania Supreme Court |
Proceedings by trustees to file accounting wherein life tenant under will claimed 4/7ths of principal of trust. The Orphans' Court of the County of Philadelphia, as of April term, 1919, No. 125, Hunter, J., entered decree adverse to life tenant and life tenant appealed. The Supreme Court, No 221, January term, 1953, Bell, J., held that where father's will gave son life estate in trust income remainder to son's children or issue, if any, and if son left no child or issue living at his death, to nieces of testator's deceased wife living at testator's death and 4 of 7 of such nieces had died without issue, son's life estate did not coalesce or merge with remainder interests.
Decree affirmed.
J. Webster Jones, Philadelphia, for appellant.
John E. Stevenson, Philadelphia, for appellee.
Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
The trustees under the will of Samuel Dickson, deceased, filed a Fourth Account at the audit of which his son, Arthur G Dickson, the life tenant, claimed he was then entitled to 4/7ths of the principal of the trust by a coalescence or merger of the life estate and remainder interest.
Testator left his residuary estate in trust to pay the income to his son Arthur for his life, remainder to his children or issue, if any, and if he left no child or issue living at his death ‘ to the nieces of my late wife living at the time of my [1] death.’
Testator was survived (1) by a son who is 79 years of age, who has no children or issue, and (b) by 7 nieces of his wife, 3 of whom are still living and 4 of whom have died without issue. Testator's son claims that he is immediately entitled to 4/7ths of the remainder of the estate on the ingenious theory that since it is impossible for him to have children or issue, there was an intestacy as to these remainder interests and since he is the testator's sole heir, his life estate merged or coalesced with the remainder. There are many reasons why this appeal must fail, several of which we shall discuss.
In the first place Dickson no longer has a life estate, and consequently there could not possibly be a merger.
Dickson went into bankruptcy in 1932. The trustee in bankruptcy sold at public auction all the right, title and interest of the bankrupt under the will of his father, Samuel Dickson, including his life estate in (one-half of) the net income therefrom. This interest was purchased by Henry S. Drinker, Jr., individually, and also for and on behalf of the law firm of Drinker, Biddle & Reath. Mr. Drinker and Drinker, Biddle & Reath thereupon created an irrevocable trust to which they transferred, assigned and delivered to the Fidelity-Philadelphia Trust Company all of the aforesaid right, title and interest which Drinker had purchased at the bankruptcy sale. This trust provided, inter alia, that the trustee should hold the said estate in trust to pay the net income quarterly to Arthur G. Dickson for his life, and upon his death to convey, assign, transfer and pay over all property then held by the trustee to his wife. Mr. Dickson's wife is now deceased. The trust deed also contained the usual spendthrift trust provisions. It is obvious that this inter vivos trust with its spendthrift trust provisions is not the same as the life estate created for Arthur G. Dickson in the will of his father.
In order to create an intestacy, Dickson contends that it is impossible for him to have any children and he offered to prove by expert medical testimony that such was the fact. An intestacy is, of course, an important and absolutely indispensable link in the chain of his argument, because his father's will gave the remainder interest not to Arthur but to Arthur's surviving children and issue (of deceased children), with a contingent gift over, upon failure of such children and issue, to the nieces of testator's late wife living at testator's death.
For centuries the law was well settled that ‘ a possibility of issue is always supposed to exist in law, even though the donees be each of them 100 years old. 2 Blackstone's Commentaries 125’. List v. Rodney, 83 Pa. 483 492.See to the same effect: In re Austin's Estate, 315 Pa. 449, 451, 173 A. 278; In re Sterrett's Estate, 300 Pa. 116, 123, 150 A. 159 (); In re Straus's Estate, 307 Pa. 454, 459, 161 A. 547.[2] We need not now decide this question. Suffice it to say that even if such evidence were admissible and the fact was proved that Arthur G. Dickson was incapable of having children because of his age and his physical condition, it would not cause an intestacy in this case; since the gift to the nieces living at testator's death was contingent, In re Straus' Estate, 351 Pa. 136, 138, 40 A.2d 402; In re Bomberger's Estate, 347 Pa....
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