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NEWLIN ESTATE (05/21/51)

May 21, 1951

NEWLIN ESTATE


Appeal, No. 51, March T., 1951, from judgment of Orphans' Court of Allegheny County, 1949, No. 5310, in Estate of William E. Newlin. Judgment reversed.

COUNSEL

A. M. Simon, for appellant.

Samuel Milliken, for appellee.

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

Author: Bell

[ 367 Pa. Page 528]

OPINION BY MR. JUSTICE BELL

Was the testator's bequest of the corpus of a trust fund of $6000. (after a life estate to his son) to his son's issue who are living at the time of the son's death, to be divided among said issue (income in the meantime to be paid to the son's widow) at the time said issue arrive at the age of 30 years, contingent or vested subject to be divested? If the gift was contingent then, as a majority of the court below held, the bequest violated

[ 367 Pa. Page 529]

    the rule against perpetuties; if it was vested subject to be divested it was a valid gift and the testator's 30 year old grandson, who is the appellant, is entitled to the fund.

The rule against perpetuities was well and clearly established;*fn1 its application has often been difficult and perplexing. Before discussing the rule against perpetutities and its applicability to this will, it seems wise to search Newlin's will to discover, if possible, the testator's intent, because that of course is the pole star: Mulert Estate, 360 Pa. 356, 61 A.2d 841; Sarver's Estate, 324 Pa. 349, 188 A. 141; Prime's Petition, 335 Pa. 218, 6 A.2d 530; Byrne's Estate, 320 Pa. 513, 181 A. 500.

The testator's intent must be ascertained by a consideration of the entire will which of course must be read in the light of the circumstances surrounding him when he made it: Packer's Estate (No. 1), 246 Pa. 97, 92 A. 65; Hermann's Estate, 220 Pa. 52, 58, 69 A. 285; Mulert Estate, 360 Pa. 356, 61 A.2d 841; March Estate, 357 Pa. 216, 53 A.2d 606. The attendant circumstances include the condition of his family, the natural objects of his bounty and the amount and character of his property: Fahey's Estate, 360 Pa. 497, 500, 61 A.2d 880; Mayer's Estate, 289 Pa. 407, 137 A. 627; Frisbie's Estate, 266 Pa. 574, 109 A. 663.

Testator, a lawyer, died December 23, 1922, having made a last will which was dated August 24, 1920. He left an estate of approximately $44,000. He was survived by a widow, who is still living, a son, who died September 15, 1934, and a grandson, the present appellant, who was born December 1, 1919 -- 9 ...


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