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BEHAN ESTATE. (03/22/60)

March 22, 1960

BEHAN ESTATE.


Appeals, Nos. 137, 138, 168 and 169, March T., 1959, from decree of Orphans' Court of Allegheny County, No. 4676 of 1956, in re estate of Richard J. Behan, deceased. Decree, as modified, affirmed; reargument refused May 12, 1960.

COUNSEL

Samuel L. Goldstein, with him Suto, Power, Goldstein & Walsh, for Esther H. Behan, widow, and co-executrix and co-trustee of estate of decedent.

John C. Bane, Jr., with him Bernard J. Hampsey, John H. Scott, Jr., and Reed, Smith, Shaw & McClay, for Agnes Fox and Commonwealth Trust Company of Pittsburgh, trustees, and Agnes Fox and Fidelity Trust Company, trustees.

Ralph S. Snyder, Deputy Attorney General, with him Anne X. Alpern, Attorney General, for Attorney General, appellant.

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

Author: Bell

[ 399 Pa. Page 315]

OPINION BY MR. JUSTICE BELL.

Four appeals involving various and highly technical points, were presented and argued together in this Court. Without discussing some of the technical questions raised, we shall decide the basic questions, in which all parties are interested, on their merits.

Richard J. Behan on December 29, 1949, made a valid inter vivos trust agreement with Potter Bank & Trust Company, with active duties imposed upon the trustee, which was duly amended on December 31, 1952. Under the terms of the amended trust agreement the income of the trust was payable to Miss Agnes Fox,

[ 399 Pa. Page 316]

Behan's secretary, for her life, and if the income was not sufficient it was to be supplemented by a payment out of principal to reach a certain minimum annual allowance. Upon the death of Agnes Fox " The principal remaining*fn1 in the hands of the trustee shall be paid over... to such charitable trust or foundation as shall be hereafter established by the terms of the last will... of the donor..." The amended trust by its terms was irrevocable, and the settlor reserved no power of dominion or appointment except as hereinbefore set forth.

Behan died on October 8, 1956, leaving a will in which he provided that all his residuary estate was to be given to the "Behan-O'Donnell Charitable Foundation" for the purpose of establishing a convalescent home and for other charitable purposes. The trust principal was approximately $63,000; the testamentary estate was approximately $420,000.

Behan's widow filed her election to take against her husband's will pursuant to Section 8 of the Wills Act of 1947, and also filed her election to take against the provisions of the aforesaid inter vivos trust pursuant to Section 11 of the Estates Act of 1947.*fn2

The lower court erroneously decided that the life tenant Agnes Fox was entitled to income plus sufficient principal*fn3 to reach a certain minimum annual allowance, but correctly said: "Section 11 of the Estates Act of 1947 gives the widow the right to elect to take against a conveyance of assets by a person who retains a power of appointment by will....

"The distribution of the corpus of the trust is improper at this time since the life tenant is entitled to the entire ...


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