Freeman's Estate , 40 Pa. Super. 31 ( 1909 )

Opinion by

Porter, J.,

Henry G. Freeman died February 15, 1875, leaving a will by which the Girard Trust Company was appointed trustee of his residuary estate, the income of which was to be paid to his widow, during her life, and after her death was to be equally divided between his six children, one of whom was James B. Freeman, during their respective lives. The will contained the following clause which is material to the disposition of this case: “ In trust from and after the death of either of my sons or daughters 'and until the death of all of them, to pay the income which he or she would, if living, have received to such person or persons of kin to such son or daughter as he or she may by will have appointed and .in default of such appointment joAhejdfil^ of such son or daughter that may then be living or the issue of any child or children of such son or daughter that may then be dead, in equal shares, as however that such issue shall take per stirpes only a parent’s share and if there be no children or issue of such son or daughter then such person or persons as'would take from, through or under me had I lived until then and died intestate.” We have in this case to deal with the income of the share which James B. Freeman received during his life and concerning which he was by the will of his father vested with a power to appoint such of his own kin as he might by will designate, to receive the income of that portion until the death of the last of his brothers or sisters.

James B. Freeman died on April 5, 1907, having first made a last will and testament which was duly admitted to probate. He attempted in this will to exercise the power of appointment, conferred by the will of Henry G. Freeman, as to his share of the income, by directing that it should be paid by the trustee, “to and among my children, including under this denomination my said adopted daughter Mary Anne Williamson, whom I have declared and hereby declare to be kin to me in the sense in which that expression is used in the will of my late father in manner following, videlicet: I direct and appoint the said income to be apportioned among and paid over to my said children in the following shares and proportions, namely: three-thirtieth parts or shares to my daughter Helen, .... three-thirtieth parts or shares to my daughter Matilda, .... five-thirtieth parts or shares to my daughter Minnie Thompson Lee, .... three-thirtieth parts or shares to my daughter Lena, .... eight-thirtieth parts or shares to my adopted daughter Mary Anne Williamson; and eight-thirtieth parts or shares to my son Robert C. Freeman.” The court below held that the appointments by James B. Freeman, to his children, his actual children, were good and constituted a valid partial exercise of the appointment, but that the appointment of eight-thirtieths of the income to the adopted daughter Mary Anne Williamson, the appellant, was not authorized by the will of Henry G. Freeman and was invalid. The court entered a decree that the income be paid upon the twenty-two-thirtieths as appointed to the actual children in the will of James B. Freeman, and that the eight-thirtieths of the income invalidly appointed to the appellant be paid, under the will of Henry G. Freeman, in equal shares to the children of James B. Freeman. Mary Anne Williamson appeals from this decree.

Mary Anne Williamson, who was then over the age of twenty-one years, was adopted by James B. Freeman, on September 29, 1892, under proceedings regularly instituted in the court of common pleas No. 4 of Philadelphia county. This proceeding was in accordance with and under the authority conferred by the Act of May 9,1889, P. L. 168. Over seventeen years after the death of Henry G. Freeman his son adopted an adult woman as a daughter, under the authority of an act of assembly which was not passed until fourteen years after the will of Henry G. Freeman had taken effect. That will delegated to James B. Freeman the power to appoint the income of the estate “to such person or persons of kin,” to said James B. Freeman as he might by will appoint. Was Mary Anne Williamson of kin to James B. Freeman within the meaning of the will of Henry G. Freeman? The property is the estate of Henry G. Freeman, the only power which James B. Freeman had over it was that conferred by the will of his father, and that will expressly restricted the power to appoint to the “kin” of the donee. The description did not merely define a legal status, which would include all who held the status, but it defined a fact, and only those who can claim to be included within this definition can claim. The words “kin” and “kindred,” when used in a will, are limited in legal meaning, as in common use, to those related by blood, and do not include a husband or wife, unless accompanied by other words clearly manifesting a purpose to extend their signification: Haraden v. Larrabee, 113 Mass. 430; Swasey v. Jaques, 144 Mass. 135; Keteltas v. Keteltas, 72 N. Y. 312; Wetter v. Walker, 62 Georgia, 142. The adoption of the appellant, under the provisions of the act of 1889, invested her with all the rights of a child and heir of James B. Freeman, but it did not change the facts. She was not the actual child of James B. Freeman and was not of his blood: Edwards's Appeal, 108 Pa. 283. The intention of Henry G. Freeman must remain the controlling factor in the disposition of the income of this property, so long as the trust continues. He authorized James B. Freeman to appoint to persons within a designated class, those of his own blood, and any appointment outside that class was necessarily invalid.

The appellant contends that even if the appointment of a part of the income to her was in excess of the power of the appointer, that as this was a defective execution of the power the entire attempt of James B. Freeman to appoint was invalid, as a whole. She asserts, therefore, that the entire income of the share of the estate which had been enjoyed by James B. Freeman during his lifetime must be distributed as directed by the will of Henry G. Freeman, upon the failure of his son to make a valid appointment, and that as she is an adopted daughter of James B. Freeman she is entitled, under the will of Henry G. Freeman, to one-sixth of the income of this share. This contention is founded upon the argument that being an adopted daughter she is a child of James B. Freeman, within the meaning of the devise over in the will of Henry G. Freeman. We do not deem it necessary to consider in this appeal the question elaborately argued in the brief, as to whether there may be a valid partial exercise of a power of appointment, for no matter how that question might be determined, this appellant can take nothing. The bequest over in the will of Henry G. Freeman was to the children, the actual children of his sons and daughters, and those who are not in fact children do not meet the terms of the bequest. The adoption of the appellant, under the act of 1889, gave her the right to inherit from her adopting parent, and that right is complete. But this appellant is not claiming by inheritance from James B. Freeman, she asserts her right under the will of Henry G. Freeman. She is not a child of James B. Freeman, within the meaning of the will of his father. This question is distinctly ruled by Schafer v. Eneu, 54 Pa. 304. The decisions upon this question were referred to and ably discussed by President Judge Rice in Phillips’s Estate, 17 Pa. Superior Ct. 103. In Kohler’s Estate, 199 Pa. 455, the testator committed the distribution of the estate to the law, upon the happening of an event necessarily future, and it was held that he must reasonably be presumed to have contemplated the possibility of a change in the law in the meantime. There is nothing in that case which is not in entire harmony with the decisions above cited. The authority of Schafer v. Eneu, 54 Pa. 304, has been recognized and its doctrine reasserted in the recent case of Burnett’s Estate, 219 Pa. 599. The questions presented by this record have been so fully considered in the authorities hereinbefore cited that further discussion is unnecessary.

The decree is affirmed and the appeal dismissed at cost of the appellant.