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MIKALOFF ESTATE. (03/22/60)

March 22, 1960

MIKALOFF ESTATE.


Appeals, Nos. 193 and 196, March T., 1959, from decree of Orphans' Court of Allegheny County, No. 3496 of 1951, in re estate of John P. Mikaloff, deceased. Decree affirmed; reargument refused June 3, 1960.

COUNSEL

Patrick M. O'Donnell and Ralph J. McAllister, with them Parker, Evashwick & Brieger, and McAllister & McAllister, for appellants.

Dayne Shaw, for appellee.

Before Jones, C.j., Bell, Jones, Cohen, Bok and McBRIDE, JJ.

Author: Cohen

[ 400 Pa. Page 141]

OPINION BY MR. JUSTICE COHEN.

John T. Mikaloff died testate on September 1, 1928, survived by his widow, Emma, and by his five children of a previous marriage. In his will, after bequeathing to his widow an annuity, the testator directed that "the residue of my estate be invested for the period of thirty years, and the income therefrom paid quarterly and the principal at the end of thirty years, as follows: One-fifth thereof to my daughter, Mary Alice Gordon, and then to her two children, Clifford and Gladys; one-fifth thereof to my son, George F. Mikaloff; one-fifth thereof to my son, William Oscar Mikaloff; one-fifth

[ 400 Pa. Page 142]

    thereof to my daughter, Grace Elizabeth Jones; one-fifth thereof to my son, John P. Mikaloff, Jr.; and in the event of the death of any of my said children, then to their children respectively; if they leave no children surviving them, respectively, then to the other residuaries."

The thirty year period designated in the residuary clause has expired, and we are called upon to determine what is the proper distribution of the principal of the estate. The two appellants here, one the heir-at-law and executrix of the estate of widow Emma, the other, the sole beneficiary and executrix of the estate of testator's son, William Oscar Mikaloff, who died within the thirty year term without leaving children, stand to gain only if the principal of the testator's estate should pass under the intestate laws. Their objection to a distribution under the will to Grace Elizabeth Mikaloff, the sole child of the testator to survive the thirty year term, and to the children of Mary, George and John, is on the ground that testator's attempted gift of the principal violates the rule against perpetuities.

The court below did not pass upon appellants' remoteness objection. The learned court found that a family agreement executed subsequent to the testator's death, in which the widow Emma and son William joined, estopped appellants in their representative capacities from contesting the validity of the will. Since we think it clear that no violation of the rule against perpetuities has occurred, it is unnecessary for us to pass upon the appellants' contention that they have the right to contest the validity of the residuary provision. For the purpose of these appeals, we assume appellants' present standing to object.

The rule against perpetuities is concerned with the vesting of estates. In its simplest expression, the rule commands that a ...


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