Appeals, Nos. 221, 222 and 223, Jan. T., 1949, from decree of Orphans' Court of Philadelphia County, Oct. T., 1894, No. 60, in Estate of Charles J. Harrah, deceased. Decree reversed.
Philip A. Bregy, with him Edmund B. Spaeth, Jr., and MacCoy, Brittain, Evans & Lewis, for appellants.
Richard E. McDevitt, with him Philip H. Ward, 3rd, and Montgomery, McCracken, Walker & Rhoads, for appellees.
Sheldon F. Potter, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. CHIEF JUSTICE MAXEY
This is an appeal from the decree of the court below concerning a certain schedule of distribution in the above entitled estate. The testator died on February 18, 1890, survived by five lines of descendants. His will, dated January 31, 1890, is in the form of a series of pecuniary legacies of unequal amounts, one legacy for each line of descendants. The residue of the estate is then left proportionately to the pecuniary legatees. Some gifts were outright and some were in trust. The gift for the line of descendants represented by his son, George Harrah, was a trust to pay the income to George for life, then to pay 1/3 of the income to George's widow for life and subject to the widow's interest to pay the entire income
to George's children during the life of each of them "and upon the death of any of such children, to distribute his or her share of said principal sum, according to the intestate laws of Pennsylvania". The Rule against Perpetuities is involved in this case.
Paragraph III of the will reads as follows: "I give and bequeath to my son Charles J. Harrah, Junior and the Philadelphia Trust Safe Deposit and Insurance Company, their heirs, successors and assigns, the sum of One hundred and fifty thousand ($150,000.) Dollars. In Trust to pay the net income thereof to my son, George W. Harrah, during his natural life, and at and immediately after his death, to pay one-third of said net income to his widow during her life, and two thirds thereof to his children, during their respective lives. And upon the death of said widow, to pay said one-third also of said income to said children, and upon the death of any of such children, to distribute his or her share of said principal sum, according to the intestate laws of Pennsylvania."
The court below adopted the appellees' view of this case, that is, that the gifts in remainder to the heirs at law and next of kin of Julius T. Harrah are void under the rule against perpetuities. Appellees say: "... it is not difficult to imagine that [the testator'] son, George, might have children, born after the death of the testator, who might, quite conceivably, have children born more than twenty-one years after the death of the last of George's children who were born in the lifetime of the testator. To the extent, therefore, that the gift in remainder contemplates, among its possible objects, such great-grandchildren and even more remote issue of the testator, it is, by its terms in violation of the rule against perpetuities and consequently void."
Appellants contend that "since all of the children of testator's son, George, including Julius T. Harrah, were born in the lifetime of the testator and since there were,
in fact, no children born to George after the death of the testator, the gifts in remainder do not violate the rule against perpetuities. They concede that the will, by its terms, admits of possible gifts in remainder to ineligible persons, but contend that since they have not eventuated, the gifts to persons who meet the tests of eligibility under the rule should not be permitted to fail."
Paragraph 12 of the will reads as follows: "All the rest residue, and remainder of my estate, of whatever character, and wherever situate, I give, devise, and bequeath to the legatees named, and in the same manner upon the same trusts, and in the same proportions as I have heretofore ...