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ERVIN ESTATE (03/19/51)

March 19, 1951

ERVIN ESTATE


Appeals, Nos. 68 to 71, incl., Jan. T., 1951, from decree of Orphans' Court of Delaware County, June T., 1943, No. 67, in Estate of Mary E. Ervin, Deceased. Decree affirmed.

COUNSEL

R. Winfield Baile, with him George W. Thompson, for appellants.

Norman J. Kalcheim, with him C. William Kraft, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Stearne

[ 367 Pa. Page 59]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The appeals relate to a construction of a will. The single question is whether testatrix intended to pass the corpus, in remainder, for a charitable purpose and failed to appoint a trustee, or whether her intent was to give the corpus to an institution but failed to name such institution thereby causing an interstacy.

Testatrix died January 22, 1941, leaving to survive as her heirs and next of kin, a son and three grandchildren, children of a deceased daughter. Under the will the net estate was placed in trust to pay one fourth of the income to the son for life, and one fourth of the income to each of the three named grandchildren. It was also provided that in the event of the predecease of the son before the death of his wife, such share should be paid to the wife for life. After the death of the survivor of the life tenants, the corpus was directed by

[ 367 Pa. Page 60]

    item three to be paid to "a Charitable Institution, hereinafter more particularly designated." By the eighth item of the Will, it is provided that such corpus shall be paid as follows: "... unto the Charitable Institution for Crippled Children, heretofore referred to in this my last Will, and known as, and more particularly designated as ... * * *." In the same item it is further directed that such corpus or residue shall be paid to "said Charitable Institution, absolutely, to it, its successors and assigns forever."

The appellants, heirs and next of kin, contend that the will failed to make a definite and final disposition of the remainder, hence testatrix died intestate as to corpus; also that if appellants, having acquired both income and principal, they are entitled to receive the fund absolutely freed of the trust under the doctrine of merger.

The auditing judge awarded the estate to the named trustee, in trust, "... for the payment of income to the life beneficiaries... and upon the death of the last surviving income beneficiary to pay over the distribute the remainder of principal of the residuary estate unto the Philadelphia Unit of the Shriners' Hospital for Crippled Children." It was ruled that the words of the will constituted a gift for a charitable use, viz.: care of crippled children; and also failure to name a trustee did not cause the charitable use to fail. The appeals followed.

Louise A. Lewis, wife of the son, Joseph S. Lewis, possesses a contingent life interest in one fourth. She has now been joined in these proceedings. We, therefore, need not consider whether it is premature to ...


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