
    Kellerman’s Estate. Crowley’s Appeal.
    
      Bes adjudicaba — Orphans’ Court — Decedents’ estates — Construction of will on partial distribution.
    
    1. A particular construction of a will on a partial distribution by an auditing- judge of the Orphans’ Court to which no exceptions were filed, and from which no appeal was taken, is not res adjudicata so as to bind the Orphans’ Court on the subsequent adjudication of an account covering another portion of the same estate.
    
      Trusts and trustees — Purpose of trust — Separate use trust— Preservation of remainders — Buie in Shelley’s Case.
    
    2. Testator gave a portion of his estate to trustees to keep the same invested and to pay over the income thereof to his granddaughter, a married woman, “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 and assigns in equal shares forever per stirpes, and not per capita.” The will was subsequenxly republished by a codicil. It appeared that the granddaughter’s husband died subsequent to the making of the will, but the date of his death in reference to the date of the republication of the will was not established. Held, (1) the date of the husband’s death being left unascertained by testimony, it will not be assumed on appeal that his death occurred subsequent to the republication; and (2) that the words “child and children which she may leave surviving her, and the lawful issue of them who may be then deceased” are words of purchase and not limitation, and that the trust continued until the death of the granddaughter.
    Argued May 6, 1913.
    Appeal, No. 115, Jan. T., 1913, by Bertha Crowley, from decree of Superior Court, Oct. T., 1912, No. 144, affirming decree of O. C. Philadelphia 
      Go., April T., 1911, No. 356, dismissing exceptions to adjudication in Estate of Caroline Kellerman, deceased.
    Before Fell, C. J., Bkown, Elkin, Stewaet and Moschziskee, JJ.
    Affirmed.
    Appeal from Superior Court. See Kellerman’s Estate, 52 Pa. Superior Ct. 412.
    The following opinion was filed by Rice, P. J.:
    Tbe fund embraced in tbe account and distribution under review in this appeal consisted principally of tbe proceeds of tbe sale of realty made by tbe executors under a power contained in tbe will. Tbe clause of tbe will wbicb gives rise to tbe dispute reads as follows: “One other fourth part of my estate I give, bequeath and devise to my executors in trust for tbe following uses, and purposes that is, to beep tbe same invested and to pay over tbe income thereof to my granddaughter, Bertha Crowley, wife of John C. Crowley, for and dur:’ ing all tbe term of her natural life for her sole and separate use, and from and immediately after her der cease then in trust to and for tbe only proper use and behoof of all and every tbe child and children wbicb she may leave surviving her, and tbe lawful issue of any of them who may be then deceased having left such issue, their several and respective heirs, executors, adminisr trators and assigns, in equal shares forever per stirpes and not per capita.” This appeal is from tbe decree of tbe Orphans’ Court dismissing tbe exceptions to tbe adjudication of tbe executors’ second account and awarding one-twelfth of tbe fund then for distribution to tbe executors in trust for Bertha Crowley, the appellant, instead of awarding it to her absolutely, as she claimed should be done.
    If tbe proper construction of tbe clause above quoted, and tbe question whether tbe trust ended with tbe death of the appellant’s husband, were. open questions upon tiie adjudication of that account, they were in our judgment correctly decided by tbe Orphans’' Court, for tbe ■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 Bahm’s Est., 226 Pa. 594, 233 Pa. 602, and Lafferty’s Est., 209 Pa. 44, 230 Pa. 496.
    Bahm’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 Mestrezat’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 Bahm, 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 ad judicata. The appellant company had its day in court and an opportunity to assert its right to the fund..-.v...
    ^Th'e 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 his 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 Estate, 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 ad 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 section 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 Merour 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 Appeal, 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 case our Brother Pouter 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 cases 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 be 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 ease 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.
    
      Error assigned was the decree of the Superior Court.
    
      G. Von Phul Jones, for appellant.
    
      J. F. Jenkinson, for appellee.
    June 27, 1913:
   Opinion by

Mr. Justice Stewaet,

Caroline Kellerman by her last will directed that her residuary estate be divided into three equal parts, and that one of these parts be subdivided into four shares. As to one of these four shares she directed as follows:

“One other fourth part......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.”

Bertha Crowley’s husband is deceased, and by the adjudication distributing the balance on the executors’ first account one-twelfth of the fund, derived entirely from personalty, was awarded Bertha Crowley, upon the theory that the separate use trust had become inefíective, and the remainder, being in effect given to the heirs of her body, by analogy the rule in Shelley’s Case applied. In the adjudication distributing the balance on the executors’ second account, the court as then constituted taking a different view of the law, denied Mrs. Crowley direct participation in the fund, and awarded the one-twelfth that she would have received, had the former ruling been' observed, to the executors in trust under the will. It is now urged in her behalf that by the former adjudication her legal status under the will was established once for all; that the adjudication operated as an estoppel to further inquiry in that regard; and, second, that independent of this, the trust failed in consequence of the death of Bertha Crowley’s husband prior to the death of the testatrix, and that Bertha Crowley was, therefore, entitled to take absolutely under the rule in Shelley’s Case. In the opinion filed by the learned president judge of the Sxiperior Court, in disposing of the first of these contentions, all of our own cases bearing on the subject involved are so fully and carefully reviewed and analyzed that further reference to them here is unnecessary. It is enough to say in this connection that not one of our cases gives support to the position taken by the appellant. A few words, supplementing the opinion of the learned president judge, as to the limitation to be observed in applying the rule of res ad judicata in cases of this kind, is all that we deem necessary to add. A decree of distribution following the adjudication of a partial account is a final decree, and the matter determined in that proceeding cannot again be drawn into controversy as between the parties and privies to the decision in a distribution upon a subsequent account; but, by “matters determined” is to be understood such facts and circumstances, found or presumed, which fix and determine the rule of law applicable to the case. The questions of fact which are made the subject of dispute in the earlier adjudication and which were there determined, may not again be made the subject of controversy between the parties on the second distribution; the parties to the dispute having had their day in court, and these questions having once been determined by legal method of inquiry, the findings with respect to them must be allowed the same collusiveness as a verdict of a jury in a common law action. But the rule of estoppel does not extend to the law which was applied in the earlier distribution to the facts there ascertained when it comes to the second distribution. Though the decree in the first may have rested on a mistaken application of a rule of law — a circumstance which can only be inquired into on appeal — so long as the decree stands it is conclusive with respects to all rights in the fund distributed; but it cannot be made the basis of an estoppel when another distinct fund is to be distributed though it be part of the same estate. The law applied in the first distribution if inapplicable,, is not the law of the case; the duty of the auditing judge in distributing on a second amount is to distribute according to law, just as this is the duty of a judge in the first distribution; and in discharging this duty he must be free to disregard a decision of his own, or that of another, upon the same bench, which as he is better informed he would reject. The following extract from the opinion of Chief Justice McKean, in Kerlin v. Bull, 1 Dali. 175, is here apposite:

“A court is not bound to give the like judgment which had been given by a former court, unless they are of opinion that the first judgment was according to law; for any court may err; and if a judge concedes that a judgment given by a former court is erroneous, he ought not in conscience to give the like judgment, he being sworn to judge according to law. Acting otherwise would have this consequence; because one man had been wronged by a judicial determination,' therefore every man,.having a like cause, ought to be wronged also.”

In Shindel’s App., 57 Pa. 43, this court held in express terms that while a decree distributing the balance on a partial account is final and conclusive as to what was therein contained, it is not final and conclusive as to what was reserved for a second accounting. The plain logic of this is that the distributions are wholly distinct and separate, each having its own subject matter, and are to be treated as though they were two separate actions at law between the same parties, and such questions of fact as had been passed upon in the earlier are not open to dispute in the later. Estoppel does not extend beyond this. In the very recent case of Bower’s Est.- — Stephan’s App., 240 Pa. 388, this same question was fully considered, and our conclusion here accords with the view there expressed.

The second question raised is a more serious one, but a careful examination of the argument advanced in support of appellant’s contention leaves us unconvinced that error was committed in disposing of it. The statement of the question by the appellant is open to the criticism that it assumes something as a fact for which, there is no warrant. It is thus stated: “Does the rule in Shelley’s Case apply to a devise where a separate use trust for life is created for the benefit of a married daughter, whose husband dies after the making of the will, with remainder over to those who correspond in description with the lineal heirs of the life tenant? And does the separate use trust end on the death of the husband, and the life estate merge with the remainder, giving the daughter a fee?”

It does appear that the husband died after 23d May, 1901, the date when the original will was made in which the trust was created. But by codicil dated 10 July, 1909, testatrix in express terms ratified and confirmed the will of 23d May, 1901, which was in effect a republication of the will. Was the husband living when this codicil was executed? The fact with respect to this seems to have been carefully avoided in the evidence. If, at that time the husband was dead, the conclusion would seem unavoidable that the trust was not for the protection against coverture. Are we to assume that his death occurred subsequent? Why should tve make such assumption when the effort is to have us reverse the action of the court below? If any assumption is to be made it is to be with respect to facts which make for the support of the action of the court rather than its defeat. Clearly it was the business of the appellant in the endeavor to strike down the trust to develop the facts on which an intelligent conclusion could rest. We ■will make no adverse assumption in this case; and, therefore, since the fact referred to is left unascertained, a categorical answer to the question submitted would not help in the determination of the case. The question then is reduced to this — the death of the husband of Bertha Crowley not being a factor — is there anything in the will indicating a purpose in the testatrix, in connection with the trust created, which will support and call for its enforcement? The adjudicating judge in his opinion filed thus states his conclusion:

“On the merits of the contention, the auditing judge is of opinion that the words ‘child and children which she may leave surviving her and the lawful issue of them who may then be deceased’ are words of purchase and not of limitation; that, although one of the purposes of the trust has ceased by the death of Bertha Crowley’s husband, the other has not, that is, the preservation and conservation of the corpus for the benefit of those entitled in remainder. Until the death of the equitable life tenant, it cannot be determined who will compose the class, consisting of surviving children and the issue of those then deceased.”

In this conclusion we agree. The appeal is dismissed.  