Benedum Estate ( 1967 )

Concurring Opinion by

Mr. Justice Roberts:

I agree with the result reached by the majority but do so without any departure from the views expressed in my dissenting opinion in Fownes Trust, 421 Pa. 476, 481-84, 220 A. 2d 8, 11-12 (1966) (Mr. Justice Musmanno and Mr. Justice Jones joined this opinion). Where the testator employs the terms “issue,” “children” and the like, the public policy of this Commonwealth, favoring both adoption and the complete integration of the adopted child into his adoptive family, dictates that the adoptive child share in the testator’s bounty as would any natural child. Despite my continued adherence to this position, I believe that in this instance the testator’s use of the word “only” to modify the phrase “issue of the body of my niece and nephews” was sufficient to indicate his intent to exclude from his will adopted children. Appellant insists that to accomplish this purpose words in the negative, e.g., “the term issue shall not include adopted children of my niece or nephews,” are necessary. In our quest to determine testator’s intent, I am always loath to impose requirements that only specified language can be employed to achieve the desired result and would not do so here.

Furthermore, I cannot accept the majority’s assertion that sub-section 6 of §14 of the Wills Act of 1947 did not change the status of adopted issue. The majority seems to hold that an adoptive grandchild or, in this case, an adoptive grandnephew is not within the terms of sub-section 6. However, this provision mandates the contrary conclusion: “(6) Adopted children. In construing a will making a devise or bequest to a person or persons described by relationship to the testator or to another, any person adopted before the death of the testator shall be considered the child of his adopting parent or parents and not the child of his natural parents: . . .” There is no indication in this sub-section of a legislative intent that a gift “to my grandchildren” should not include adoptive grandchildren and I would not, as does the majority, so hold.^*

Mr. Justice Jones joins in this concurring opinion.