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BOSLER ESTATE (06/28/54)

June 28, 1954

BOSLER ESTATE


Appeal, No. 107, Jan. T., 1954, from decree of Orphans' Court of Cumberland County, Nov. T., 1931, No. 5, in Estate of Sarah E. Bosler, deceased. Decree reversed. Proceeding upon petition of beneficiary for termination of spendthrift trust. Before GEARHART, P.J., specially presiding. Adjudication filed directing termination; exceptions to adjudication dismissed and final decree entered. Trustee appealed.

COUNSEL

E. M. Biddle, Jr., for appellant.

Samuel L. Sagendorph, with him Roland Fleer and Harold S. Irwin, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 378 Pa. Page 334]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Newton L. Bosler petitioned the court to decree the termination of a trust under which he was the beneficiary of a life interest with a spendthrift restriction.

Petitioner's mother, Sarah E. Bosler, died in 1916 leaving a will in which she gave her estate to her six children in equal shares. In the case, however, of three of them -- two daughters and the petitioner -- she created a trust as to a portion of their shares, leaving to each such daughter the income of a fund of $10,000 for life subject to a spendthrift trust, and to the petitioner the income of a fund of $20,000 for life, likewise subject to a spendthrift trust. Upon the death of each of these three children the principal was to go to his or her issue; in default of issue then living each child was to have a general power to appoint the

[ 378 Pa. Page 335]

    remainder by will; in default of both issue and the exercise of such general power of appointment the remainder was given to decedent's other descendants then living.

There was a clause in decedent's will as follows: "I have made these three bequests in trust, not from any lack of confidence in or affection for my said two daughters and son, but in order that I may feel that I have made provision for them which will assure to each one of them a support throughout his or her whole life, under any circumstances, and for the comfort that I will personally derive from such knowledge."

We are not here concerned with the trust in favor of the two daughters but only with that of petitioner. He is 65 years of age. He seeks termination of the trust on the ground that he has never had any issue and is incapable of having any, and he contends that because of his general power of appointment coupled with his life interest he has what is tantamount to an estate in fee and is therefore the only person having an interest in the trust. He presented testimony to the effect that he is a civilian employee of the United States Navy earning between $150 and $160 per month, that by reason of his age he is likely soon to be retired with a probability of not being able then to obtain other employment, and that because, on the one hand, of the shrinkage in the returns from the investments in the trust fund and, on the other, of the rise in living costs, he faces the prospect of inability to support himself and his wife in any degree of comfort. The present annual income from the trust after payment of the trustee's commission and the Pennsylvania Personal Property Tax is approximately $660.

The court below came to the conclusion that it could give partial relief to the petitioner, and accordingly it made an order on ...


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