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MOYER ESTATE. (05/29/57)

May 29, 1957

MOYER ESTATE.


Appeals, Nos. 128 and 139, Jan. T., 1957, from decree of Orphans' Court of Berks County, No. 3370, in re estate of Jacob L. Moyer, deceased. Decree affirmed.

COUNSEL

Edward Youngerman, with him Joseph E. DeSantis, for appellants.

George B. Balmer, with him Robert Morgan Smith and Snyder, Balmer & Kershner, for appellees.

Paul D. Edelman, with him James F. Marx and Gilbert Cassidy, Jr., for appellees.

Before Jones, C.j., Musmanno, Arnold, Jones and Cohen, JJ.

Author: Per Curiam

[ 389 Pa. Page 230]

OPINION PER CURIAM

The decree of the court below is affirmed on the able opinion of President Judge MARX, the pertinent portions of which are as follows:

"Jacob L. Moyer, the testator, died on February 2, 1882, survived by his wife and five children. His will, dated August 15, 1881, was probated on February 7, 1882. At the time of his death he owned property No. 725 Penn Street and property No. 818 Penn Street, Reading. By his will he imposed a trust on those properties, to the use of his wife for life, with remainders as follows:

"'Upon the decease of my wife the rents aforesaid after payment of repairs, taxes and insurance shall be divided quarterly among all of my children in equal shares, or their heirs, until the year of Our Lord 1901, at which time my youngest son will be twenty-three years old. My desire is then if a majority of my children or their heirs deem it advantageous, that said two properties be sold ... and the proceeds of said sale shall be invested upon real estate securities for the benefit of all my children during their natural life. They to receive interest semi-annually and upon their decease the principal to their children absolutely."

"Mary Moyer, wife of the testator, died on June 11, 1922. The five surviving children were:

"1. John E. Moyer, who died February 12, 1892, survived by a daughter, Jennie K. Erdman, and a son,

[ 389 Pa. Page 231]

Jacob L. Moyer, also known as Jacob L. Moyer, II. The daughter, Jennie, died April 23, 1942, intestate, survived by her husband, Willard P. Erdman, a son, George Richard Kemp, and a daughter, Doris Elizabeth Kemp Fisher. Jacob L. Moyer, II died October 8, 1932, leaving a will dated March 11, 1926, giving the residue of his estate to George Richard Kemp and Doris Elizabeth Kemp Fisher.

"2. Charles E. Moyer, who died January 21, 1895, intestate and without issue.

"3. Ellen Lewis, who died June 11, 1922, survived by Harrison Lewis, her son, who died December 17, 1943, survived by his wife, Jean D. Lewis, and a son, Robert P. Lewis, who died intestate, survived by children.

"4. J. Linnington Moyer, who died December 3, 1944, intestate, survived by two children, now living, Marylin Moyer Reed Mohn and Bonita June Moyer Sherman.

"5. Anna Heck, who died December 2, 1954, without issue.

"After the death of the testator's widow, June 11, 1922, the testamentary trustee filed an account covering the principal fund and the income accrued to the death of the widow. After audit an adjudication, with a decree of distribution, was confirmed on December 23, 1922. The auditing judge said, inter alia, 'Testator's widow having died, the principal fund on which she received a certain amount of the income during her lifetime, is also here for distribution, and represents the proceeds of 725 Penn Street, Reading, Pennsylvania, sold under the Price Act of March 22, 1910,*fn* being one

[ 389 Pa. Page ...


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