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THROM ESTATE (NO. 2) (06/28/54)

June 28, 1954

THROM ESTATE (NO. 2)


Appeal, No. 61, Jan. T., 1954, from decree of Orphans' Court of Berks County, File No. 17942, in Estate of Henry Seidel Throm, deceased. Decree affirmed. Audit of account of trustee. Before MARX, P.J. Exceptions to adjudication dismissed and final decree entered. Exceptant appealed.

COUNSEL

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.

Author: Stearne

[ 378 Pa. Page 164]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The question raised in this will construction is whether or not the testamentary provision disposing of the corpus in remainder is void because it is in violation of the rule against perpetuities. The Orphans'

[ 378 Pa. Page 165]

Court of Berks County ruled that it was not. This appeal followed.

Henry Seidel Throm died testate on November 25, 1931. He was survived by his widow, Sarah, and his daughter, Ruth, who constituted his sole heirs and next of kin. The daughter, Ruth, had a son, Charles, born in his grandfather's lifetime and who survived testator, testator's widow and his mother. Charles was survived by a posthumous daughter, Charmaine, who still survives. Testator was also survived by an unmarried sister, Lydia, who is mentioned in the will, but who possesses no interest in this estate.

Testator bequeathed pecuniary legacies amounting to $7,000; directed his executors and trustee to pay two-thirds of the income from his residuary estate to his widow, Sarah, for life and upon her death to his daughter, Ruth, for life and directed that the remaining one-third of such income should be paid to his daughter, Ruth, for life and after her death to the daughter's issue until the death of testator's widow and in default of issue, to testator's widow for her life. Upon the decease of both widow and daughter, testator disposed of the corpus of his estate. He contemplated the death of his daughter with and without leaving issue. Since the daughter left issue surviving we are here concerned only with the testamentary provision providing for that event. This dispositive clause reads: "ITEM: At and upon the death of my wife, Sarah K. Throm, and my daughter Ruth S. Throm Detweiler, and my daughter Ruth S. Throm Detweiler dying leaving lawful issue or issue of a deceased child or children, I order and direct my hereinafter named Executors and Trustee to pay and deliver the whole net proceeds of my estate to the issue or issue of such lawful child or children of my daughter Ruth S. Throm Detweiler,

[ 378 Pa. Page 166]

    share and share alike, upon arriving at the age of thirty (30) ...


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