In re Howlett's Estate

• Decision Date: 02 January 1951
• Citation: 77 A.2d 390,366 Pa. 293
• Parties: In re HOWLETT'S ESTATE. Appeal of MOYER et al.
• Court: Pennsylvania Supreme Court

77 A.2d 390

366 Pa. 293

In re HOWLETT'S ESTATE. Appeal of MOYER et al.

Supreme Court of Pennsylvania.

January 2, 1951

Proceeding in the matter of the estate of Michael P. Howlett deceased. The Orphans' Court of Philadelphia County, No 2, October Term, 1921, Hunter, J., held that income which John J. Howlett, deceased, had been receiving as beneficiary of income for life under testamentary trust was payable to surviving children of testator and issue of deceased child and dismissed exceptions, and Mary M. Moyer, and others appealed. The Supreme Court, No. 181, Jan. Term, 1950, Chidsey, J., held that under the will the named appellant as adopted child of Michael P. Howlett, deceased, was not entitled to the share of income Michael P. Howlett, deceased, had been receiving.

Decree affirmed.

Abraham Berkowitz, John R. Meade and Gordon Butterworth, all of Philadelphia, for appellant.

Morgan, Lewis & Bockius, Randal Morgan, 3rd, and William E. Schubert, all of Philadelphia, for appellee.

Before DREW, C. J., and STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.

CHIDSEY, Justice.

Michael P. Howlett, a resident of Philadelphia, died on February 21, 1921, leaving a will executed on July 11, 1907, in which he created a trust of his residuary estate for payment of the net income in equal shares to his seven children during their lives, the share of income of any child dying during the continuance of the trust to be paid to such child's ‘ issue’, or in default of issue, to surviving children and the issue of deceased children.

John J. Howlett, a son, died on September 28, 1947, during the lifetime of the trust, leaving no issue of the body but an adopted daughter, Mary M. Moyer. The adoption occurred on November 27, 1897. John J. Howlett was a cotrustee and following his death an account was filed, upon the audit of which it was adjudicated that the income which he had been receiving as a life tenant was payable after his death to the five surviving children of the testator and the issue of a deceased child. From the dismissal by the court en banc of exceptions filed to the adjudication this appeal has been taken by Mary M. Moyer, her adult children and a trustee and guardian ad litem for her minor and unborn descendants, appointed in connection with the determination of the legal question involved.

Appellants rely upon Section 16(b) of the Wills Act of June 7, 1917, P.L. 403, 20 P.S. § 228 which reads: ‘ 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.’

It is earnestly urged that the adoption here having occurred prior to the execution of the will, this section of the Wills Act of 1917 which was effective prior to the testator's death is applicable and award of the John J Howlett share of the income should have been made to his adopted daughter, Mary M. Moyer. Recognition of the principle that in effect and operation a will speaks as though executed immediately before death, would lend force to appellant's contention if testator had directed that upon the death of any of his children such deceased child's share of the income should be enjoyed by the latter's child or children, but he did not so provide. Paragraph Eighth of the testator's will which establishes the residuary trust (after providing annuities not here material) continues: ‘ * * * as follows:-to my children in equal shares from time to time during their lives, and upon the death before or after my death of any child leaving issue him or her surviving the share of the income which such child had been receiving or would have received if living shall be paid to the issue of such child as they shall survive from time to time during the continuance of this trust; and upon the death of any of my four children, Catharine Wilson, John J. Howlett, Margaret A. Walsh or M. Frances Howlett, dying without leaving issue him or her surviving the share of the income which any of them was entitled to shall be divided in equal shares and paid from time to time to all the others of my then surviving children and the issue of any deceased child. * * * The said trust shall terminate upon the death of the survivor of the following named persons: [naming his seven children and others], and upon such termination, the principal of my estate shall be converted into cash or otherwise divided by my Trustees into just and convenient portions, and paid or transferred and conveyed in equal shares unto my grandchildren then surviving and the issue of any grandchild then deceased, absolutely, the number of shares being that of the number of my children who shall have left issue then surviving, and so that each group of grandchildren, including the issue of deceased grandchildren, shall take the share which they...