Kellerman's Estate , 52 Pa. Super. 412 ( 1913 )

Opinion by

Rice, P. J.,

The fund embraced in the account and distribution under review in this appeal consisted principally of the proceeds of the sale of realty made by the executors under a power contained in the will. The clause of the will which gives rise to the dispute reads as follows: “one other fourth part of my estate, I give, bequeath and devise to my executors in trust for the following uses, and purposes that is, to keep the same invested and to pay over the income thereof to my granddaughter, Bertha Crowley, wife of John C. Crowley, for and during all the term of her natural life for her sole and separate use, and, from and immediately after her decease then in trust to and for the only proper use and behoof of all and every the child and children which she may leave surviving her, and the lawful issue of any of them who may be then deceased having left such issue, their several and respective heirs, executors, administrators and assigns, in equal shares forever per stirpes and not per capita.” This appeal is from the decree of the orphans’ court dismissing the exceptions to the adjudication of the executors’ second account and awarding one-twelfth of the fund then for distribution to the executors in trust for Bertha Crowley, the appellant, instead of awarding it to her absolutely, as she claimed should be done.

If the proper construction of the clause above quoted, and the question whether the trust ended with the death of the appellant’s husband, were open questions upon the adjudication of that account, they were in our judgment correctly decided by the orphans’ court, for the reasons given and upon the authorities cited in the opinions of the auditing judge and of the court in banc. But it is claimed that they were not open questions, because upon the adjudication of a former account, which related wholly to personalty, the auditing judge, by an opinion filed, decided both of them adversely to the executors’ claim and awarded one-twelfth of the fund then for distribution to Bertha Crowley, the appellant. As no exceptions were filed to that adjudication nisi, it was confirmed absolutely under the rules of court. The contention is that the construction then placed on the will became the “ law of the case,” which, whether right or wrong, precluded the court from construing it differently in distributing the fund embraced in any subsequent account. In support of this contention, the learned counsel for the appellant cites Rahm’s Est., 226 Pa. 594, 233 Pa. 602, and Lafferty’s Est., 209 Pa. 44, 230 Pa. 496.

Rahm’s Estate is a rather complicated case, but, as we understand the decisions in the two appeals, they do not relate to the conclusiveness of a decree distributing one fund, upon a subsequent distribution of another fund arising in the same estate, but relate only to the conclusiveness of a final decree disposing of a fund in a particular way, in a subsequent controversy between the same parties, involving the same fund. This appears by the following excerpts from Justice Mestpezat’s opinion in 233 Pa. 602: “It will be observed that the fund which is the subject of this account was held by the appellant company as trustee under and by virtue of the decree of the orphans’ court of June 6, 1908, by which the company was directed to pay the income to Louisa Rahm, during her life, and at her death, to Hopkins’ administrator. The present appellant, as we have heretofore seen, appealed from that decree to this court, but subsequently discontinued the appeal, and the question of the disposition of the fund is therefore res judicata. The appellant company had its day in court and an opportunity to assert its right to the fund. . . . The appeal, however, was discontinued, the appellant thereby submitting to the decree of the orphans’ court as the final and proper disposition of the fund the possession of which is now in controversy.” Lafferty’s Estate is more nearly like the present case, and, in view of earlier as well as later cases, we deem it important to call attention, in some detail, to its distinguishing features. It appears by the report of the first appeal (209 Pa. 44), that a testator created a trust estate which was not to terminate until his youngest grandchild, living at the date of his last surviving child, should arrive at full age. He gave to each of his children power to appoint “to and among his or her children or issue in such shares, proportions and estates absolutely or upon trusts, as he or she may so will or appoint.” Francis, one of the sons, died leaving his estate to his three children absolutely. Rose E. Carr, a daughter of Francis, subsequently died leaving a will by which she directed •certain annuities to be paid by her executor and gave the residue to her children. At the time of her death the trust created by her grandfather’s will had not expired. The income from the trust estate which passed to Rose E. Carr under her father’s will was directed by the auditing judge to be paid to the guardian of her children. But, on exceptions to his adjudication, the court, in an opinion filed, held that it should be awarded to her executor, and, on appeal to the Supreme Court, the decree modifying the adjudication accordingly was affirmed. Subsequently, on the adjudication of another account, the court awarded the income then for distribution to the minor children of Rose E. Carr; but, on appeal (230 Pa. 496), the Supreme Court reversed the decree and awarded the fund to the executor or trustee under her will. Speaking of the decision in the first appeal, Justice Potter. said: “That decision necessarily involved the determination of the question whether or not the will of Francis Lafferty was a valid exercise of the power of appointment given to him in the will of his father. After the lapse of some six years, precisely the same question, in the same estates, under the same wills, is again presented by the decree from which the present appeal is taken. The decision in Lafferty’s Est., 209 Pa. 44, became the law of the case and stands as such.” The difference between that case and the present is substantial. There, the construction of the will, which was held to be the “law of the case,” and therefore controlling in subsequent distributions under the same will turning on the same question, was the construction which the Supreme Court had placed upon it in a contested proceeding in which the question was brought fully before them for final determination. Here, the claim is, that the construction of a will adopted by an auditing judge, in distributing the fund embraced in a partial account, becomes the “law of the case” when the distribution is confirmed by the orphans’ court, and must control in all subsequent distributions of other funds of the same estate; and this, too, though the first distribution was confirmed because no exceptions were filed to it. This would be carrying the doctrine as to res judicata and as to the “law of the case” far beyond what was decided in Lafferty’s Estate and would be in conflict with many other authoritative decisions, rendered both before and since, upon the precise point upon which the case before us turns. Thus, in Guenther’s App., 4 W. N. C. 41, the distribution of the testator’s estate depended on the construction of his will and of sec. 2 of the Act of May 6, 1844, P. L. 564. At the audit of the first account a niece claimed her mother’s share, the auditor allowed her claim and no exceptions were filed to his report. In an adjudication of a second account, which involved precisely the same legal question, the auditing judge held that she was not entitled to any part of the fund for distribution. The orphans’ court dismissed her exceptions and confirmed the adjudication, and, upon appeal, the Supreme Court affirmed the decree, saying: “The prior decree of the orphans’ court was conclusive only as to the fund then distributed.” Again, in Kline’s App., 86 Pa. 363, it appeared that an auditor was appointed to distribute the fund embraced in the first account of the executors, before whom the appellant appeared and claimed to participate as a residuary legatee. The auditor’s report, that he was not a residuary legatee and disallowing his claim, was confirmed by the orphans’ court. On the audit of the final account of the executors he again claimed a share as a residuary legatee, first, in the fund embraced in the former account, and, second, in the fund for distribution on the final account. The auditor and the orphans’ court disallowed both claims, but, on appeal, the Supreme Court held that upon a proper construction of the will and codicils, he was a residuary legatee and therefore, so far as he was excluded as such from a share in the fund not included in the first distribution, there was error. Speaking of the first decree, Justice Mekcub, said that it must be held to be conclusive “as to the fund distributed,” but not conclusive “as to every question considered,” and that Guenther’s Appeal ruled the case. The same general question arose in Reilly’s Est., 190 Pa. 509, and was decided in the same way upon the authority of the two cases above cited. Again, in Lease v. Ensminger, 5 Pa. Superior Ct. 329, it was held, upon application of the principle of Guenther’s App., that the finding of an auditor, confirmed by the orphans’ court, excluding a husband from participation in the personal estate of his wife, by reason of neglect to support his wife, was conclusive only as to the fund then distributed, and did not operate as res judicata to preclude the husband from having that question determined by a jury in an action of ejectment for the purpose of determining his right to the real estate as tenant by the curtesy. In Raeder’s App., 167 Pa. 597, the principle for which Guenther’s Appeal and Kline’s Appeal stand was applied upon the authority of those cases; and the principle has been impliedly recognized in the analogous cases relating to the correction of inequality of distribution on a partial account, by a subsequent distribution of other funds of the same estate. See Townsend’s App., 106 Pa. 268, 274; Grim’s App., 109 Pa. 391, 397, 147 Pa. 190; Yetter’s Est., 160 Pa. 506, and Stahl’s Est., 25 Pa. Superior Ct. 402. In the last-cited ease our Brother Porter said: “The decree of the court upon the first account was, as to the residuary legatees, conclusive only as to the fund then distributed; and did not determine that all subsequent distributions must be made upon the same theory.” In Reed’s Est., 237 Pa. 125, decided in July last, Justice Elkin reviewed some of these last-cited eases and said: “There is nothing new or novel in the principle underlying these cases. It is just, reasonable and equitable. It is predicated upon the theory that in the distribution of a partial account the rights of distributees are not finally adjudicated.”

In his opinion overruling the exceptions to the adjudication in the present case, Judge Gest, speaking for the orphans’ court, said: “It frequently happens that questions of law are imperfectly presented to the auditing judge and decided without proper argument, or the facts of the case are not fully developed, and where no exceptions are filed, either because counsel themselves do not realize the importance of the decision, or the amount involved, does not warrant the expense of litigation, or for some other sufficient reason, it would be a serious matter to hold that an ,error of law once committed could never b.e corrected in the future distribution of another and distinct fund, but remains unchangeable like the law of the Medes and Persians.” We are of opinion that such a rule was not declared in Lafferty’s Estate, and is not deducible from what was decided, and that the present case is ruled, so far as this question is concerned, by Guenther’s Appeal and the cases that follow in its lead. No reference was made in Lafferty’s Estate to any of this latter class of cases or to the principle controlling them, and there is no such conflict between them and that decision as would justify us in assuming that the Supreme Court intended to overrule them.

The decree is affirmed at the costs of the appellant.