Appeal, No. 62, Jan. T., 1954, from decree of Orphans' Court of Berks County, File No. 18918, in Estate of Lydia Seidel Throm, deceased. Decree reversed. Audit of account of trustee. Before MARX, P.J. Adjudication filed holding valid life estate of posthumous daughter of son of testator's niece. Exceptions to adjudication dismissed and final decree entered. Executor of deceased niece appealed.
George B. Balmer, with him John W. Dry and Snyder, Balmer & Kershner, for appellant.
Boyd Lee Spahr, with him Harry R. Matten, Paul D. Edelman, H. Ober Hess and Ballard, Spahr, Andrews & Ingersoll, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is from a decree of an orphans' court awarding a life estate to the posthumous daughter of a child of the first life tenant.
Lydia Seidel Throm, the testatrix, a single woman, died November 1, 1932. She was survived by her niece, Ruth Seidel Throm Detweiler, her sole next of kin. By her will dated January 29, 1931, testatrix placed her estate in trust to pay her niece, Ruth, the net income for life and upon her decease the income was further directed " to be distributed unto the children of the said Ruth Throm Detweiler, share and share alike, or their issue." The will further provided that upon the death of the children or issue of her niece, Ruth, the corpus was to be paid to a named orphans' home, a charitable institution.
Ruth, the niece and life tenant, survived testatrix and died December 17, 1942, leaving but one child, a son Charles. She died testate and also left a husband, her executor, the appellant herein. Charles died September 20, 1952. The niece, Ruth, and her son, Charles, received the net income during their successive lives.
When Charles died he left surviving a posthumous daughter, Charmaine, whose guardian ad litem is the appellee. The testamentary disposition of the corpus in remainder is conceded to be void because the will was not executed in accordance with the statute in effect at the time of her death. An intestacy resulted. The learned court below in prior adjudications correctly decided that Ruth, the niece, sole next of kin of testatrix, possessed a vested estate in remainder, subject, however, to the trust life estates. Charles, the son of the niece, the first life tenant, enjoyed a life estate after the death of his mother on December 17, 1942, until his own death on September 20, 1952 -- a period of nearly ten years. The guardian of Charles's post-humous daughter, Charmaine, claims that his ward possesses a succeeding life estate in the trust res. It was so awarded by the Orphans' Court. The executor under the will of Ruth Seidel Throm Detweiler claims that Ruth possessed a vested remainder free of additional life estates and has appealed. The rights of the parties are determined by a construction of the words of the will reading "to be distributed unto the children of the said [niece], share and share alike, or their issue."
We do not agree with the interpretation of the learned court below. The word "issue" cannot always be construed in a strict technical sense. Ex proprio vigore it indicates succession of descendants ad infinitum. When the word is used in this sense, ordinarily such gift is void because it is in violation of the rule against perpetuities: Lockhart's Estate, 306 Pa. 394, 159 A. 874; Friday's Estate, 313 Pa. 328, 170 A. 123. In Harrah Estate, 364 Pa. 451, ...