Appeals, Nos. 30 and 32, Jan. T., 1956, from decree of Orphans' Court of Blair County, 1954, No. 560, in re Estate of Anthony Cannistra, also known as Tony Cannistra, Dec'd. Decree affirmed.
James M. Dente, for appellants.
Mary L. Casanave, with her Leo C. Mullen, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno And Arnold, JJ.
OPINION BY MR. JUSTICE BELL
A difficult question is presented by this appeal: Can a testamentary trust be terminated upon the petition of a nephew and niece who are beneficiaries thereunder?
No rule regarding wills is more settled than the great General Rule that the testator's intent, if it is not unlawful, must prevail! This is the reason why so many cases continually proclaim that the pole star in the construction of every will is the testator's intent. Moreover, "The testator's intention must be ascertained from the language and scheme of his will: 'it is not what the Court thinks he might or would have said in the existing circumstances, or even what the Court thinks he meant to say, but what is the meaning of his words': Britt Estate, 369 Pa. [450, 454, 87 A.2d 243]": Sowers Estate, 383 Pa. 566, 119 A.id 60.
The foregoing century-old principle or rule is nevertheless subject to several exceptions: For example, the testator's intent cannot prevail when it is against public policy (Moorehead's Estate, 289 Pa. 542, 137 A. 802; Cf. also Africa Estate, 359 Pa. 567, 59 A.2d 925); or violates the rule against perpetuities (Newlin Trust, 367 Pa. 527, 80 A.2d 819), or statutory restrictions such as the statute of accumulations (Warden Estate, 382 Pa. 311, 115 A.2d 159); or where the testator gives a fee simple or absolute estate and then attempts to impose restraints on sale or alienation.*fn1 (Sowers Estate, 383 Pa., supra; Stineman v. Stineman, 382 Pa. 153, 114 A.2d 137.)
The rules in this class of case are clear; difficulty sometimes arises in applying these rules, or in determining which rule applies to the facts of the particular case. That is the difficulty with respect to the will of Anthony Cannistra.
Testator gave his residuary estate to trustees in trust:*fn2 "... to collect the income therefrom and to pay said income to my nephew, Anthony F. Cannistra, and my niece, Rosetta Cannistra, both children of my deceased brother, Nicholas Cannistra, share and share alike.*fn3 Said payments of income shall be made quarterly and shall continue until my said niece has attained the age of thirty (30) years, at which time the said trust shall terminate and my said trustee shall, from the corpus of said trust, pay to my said niece the sum of Five Thousand ($5,000.00) Dollars cash, and the entire balance of the corpus of said trust, less the expenses of administering said trust, shall then be paid or turned over by my said trustee to my nephew, Anthony F. Cannistra, aforementioned, absolutely whereupon said trust shall terminate.
"In the event that my said niece, Rosetta Cannistra, should die before attaining the age of thirty (30) years, if my nephew, Anthony F. Cannistra, is still living, I direct that the entire income from said trust be thereafter paid to him and said trust continue until such time as my said niece would, if living, have attained the age of thirty (30) years. [There was no express gift of the entire corpus in that event.]
"In the event that my said nephew, Anthony F. Cannistra, should die during the term of said trust and
during the lifetime of my said niece, Rosetta Cannistra, then and in such event I direct that the entire income from said trust be thereafter paid to my said niece and the corpus of said trust be paid to ...