stating “heirs” implies representation
How later courts described this case
- stating “heirs” implies representation
- "A number of provisions of Mr. Wanamaker's will (a) were ambiguous, and others (b) would have violated the Rule against Perpetuities . . . ."
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Mr. Justice Bok :
I think that the Majority has allowed the case to become needlessly involved. There are three trusts, and we are concerned with only one of them. Had tes *284 tator not intended three distinct schemes by which to distribute his property he would have made only one. Since he made three, I feel it. an open invitation to decide each separately and according to its own language.
In Paragraph Second, B. & C., the insurance trust is to be held for the benefit of the testator’s three children in equal shares for life, and of their heirs, until the youngest shall have reached twenty-one.
This is precisely what has happened: all three children are dead and all five grandchildren are twenty-one. There are no others and it is time to distribute.
In this state of affairs, K disposes of the corpus with complete clarity: “upon the youngest of my grandchildren reaching the age of twenty-one years then to pay over the principal of said sum ... to and among the heirs of my children, then living, in equal shares.” The phrase “heirs of my children” is a catch-all, including heir (C), issue (H), child (I), grandchild (K)j and children dying without issue (L).
I think it clear, therefore, that testator meant to create a single class and not a multi-class group.' And I see nothing unusual in giving income per stirpes to children and principal per capita to the succeeding generation. See Duckett’s Estate, 214 Pa. 362 (1906), 63 A. 830 ; Rosengarten Estate, 349 Pa. 32 (1944), 36 A. 2d 310 ; Love Estate, 362 Pa. 105 (1949) 66 A. 2d 238 ; Davis’s Estate, 3l9 Pa. 215 (1935) 179 A. 73 .
I think that distribution of this trust should be made per capita, since there is a group of people all of one class waiting for the elevator on the same level; Campbell Estate, 395 Pa. 395 (1959) 150 A. 2d 333 .
Hence I dissent.
Mr. Justice Eagen joins in this dissent.