Lafferty's Estate , 1915 Pa. Super. LEXIS 17 ( 1915 )

Opinion by

Rice, P. J.,

Patrick Lafferty, a son of Charles Lafferty, died leaving six children and without having made appointment or disposition of his share of the estate (an undivided one-fifth, part) as by sec. 7 of Charles Lafferty’s will he was authorized to do. Francis P. Lafferty was one of the children of Patrick Lafferty. He died after the filing of the twenty-fourth account, and the question that arose on the adjudication of the twenty-fifth account, and is the question here, was as to the distribution of the income from the residuary estate of Charles Lafferty that had accrued after the death of Francis P. Lafferty. There is and can be no dispute that upon the death of Patrick Lafferty the eighth section of the will of Charles Lafferty became applicable, and that from that time the executors held Patrick Lafferty’s share in trust as therein specified. But, while the first clause of this section is perfectly clear and free from ambiguity, and leaves no room for doubt as to the intention of the testator so far as the contingency or time when it should become applicable is concerned, it must be confessed that the remainder of the section, beginning with the words, “in trust for,” is not so clear. The conclusion reached by the majority of the orphans’ court was, that, on the death of Patrick Lafferty, his children, among whom was Francis P. Lafferty, became entitled to Patrick Lafferty’s share of the estate, and, therefore, Francis P. Lafferty had a vested interest in the income to accrue under the trust, which he could and did bequeath to his wife and child. The conclusion that this was the intention of the testator was reached by a careful analysis of the eighth clause, and upon due consideration of the general scheme of the will. It is well expressed by the court in these words: “The object of the eighth clause was to provide, in case such appointment was not made by will (which might or might not be preferential as the testator might determine), that the share of the child so dying should at once vest in his children or issue equally and per stirpes, as they were ascertained at his death, and not to provide for an entirely different and fluctuating distribution of income until the termination of the trust and for distribution of the principal at that time among a class which until the arrival of that time would be entirely contingent.” Our examination has led us to the same conclusion, and it is so well supported by the reasoning of Judge Gest that we deem it unnecessary to do more than add a few words upon a subject which is not particularly discussed in his opinion. The spendthrift trust clauses of the will, to which counsel for appellants make elaborate reference in their learned and able argument, are to be considered in arriving at the testator’s intention, but they do not necessarily compel the conclusion that his intention could not have been that, upon the death of one of his children, leaving issue, without having exercised the power of appointment, the share of that child should vest in his children. If this was the actual, personal, and individual intent of the testator, as ascertained by consideration of the particular words of the eighth section and the general scheme of the will, it ought to control, and the provisions as to liability for contracts and debts, and exemption from execution and attachment, be restrained accordingly. In that view, neither the letter nor the true intent of these provisions was violated by giving effect to the disposition which Francis P. Lafferty made of his vested interest in the income by his will.

The decree is affirmed at the costs of the appellants.