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DINKEY ESTATE. (03/13/61)

March 13, 1961

DINKEY ESTATE.


Appeals, Nos. 16 and 17, Jan. T., 1961, from decree of Orphans' Court of Montgomery County, No. 52,384, in re estate of Alva C. Dinkey, deceased. Decree affirmed.

COUNSEL

W. Bradley Ward, with him J. Pennington Straus, M. Paul Smith, and J. Brooke Aker, and Schnader, Harrison, Segal & Lewis, and Smith, Cahall & Aker, for appellant.

William White, Jr., with him Philip H. Osborne, Ralph S. Croskey, and Duane, Morris & Heckscher, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bell

[ 403 Pa. Page 180]

OPINION BY MR. JUSTICE BELL.

Testator died August 11, 1931, leaving a wife, two sons and a daughter to survive him. Robert E. Dinkey, one of testator's sons, died on June 6, 1949, leaving two children (Mardianna D. Green and Helen Lee White) each of whom is still living. On October

[ 403 Pa. Page 18125]

, 1952, Alva C. Dinkey, Jr., the other son of the testator, died leaving a widow but no children or issue to survive him. Testator's widow, the life tenant, died on March 4, 1958, at which time the testamentary residuary trust terminated. The trust principal which was reappraised as of the death of testator's widow, amounted to $1,626,000. Alva Jr.'s widow claimed one-third of the remainder of the principal of the trust on the theory that her husband took a vested one-third interest in remainder upon the death of the testator.

The lower Court denied the claim of Alva Jr.'s widow on the ground that the gift of principal to Alva, Jr. was contingent upon his surviving the life tenant, and awarded one-half of the principal of the trust to testator's daughter, Leonora, who survived testator's widow, and one-fourth to each of the two daughters of testator's deceased son, Robert. In other words, the Orphans' Court held that the testator intended to give his residuary estate after the death of his widow to his children who survived his widow and the then surviving children, per stirpes, of his deceased children.

Testator in the third paragraph of his will dated July 21, 1930, gave his residuary estate in trust to pay from the net income $400 a month to his daughter and to each of his two sons, and the balance of his income to his wife. He then provided (in this third paragraph): "Upon the death of my said wife, Margaret S. Dinkey, I direct the surviving trustee to divide the trust estate into three equal portions, and to pay the same to my three children, Robert E. Dinkey, Alva C. Dinkey, Jr., and Leonora S. Seiple. [We note parenthetically that if the will had stopped at this point, Robert, Alva, Jr., and Leonora would each have had a vested interest in one-third of the remainder, although it would not be payable until the death

[ 403 Pa. Page 182]

    of testator's widow. But the will did not ...


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