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CLARK v. CLARK. (06/04/63)

June 4, 1963

CLARK, APPELLANT,
v.
CLARK.



Appeal, No. 42, March T., 1963, from orders of Court of Common Pleas of Allegheny County, April T., 1961, Nos. 3741, 3742 and 4925, July T., 1961, Nos. 3, 4, 74, 94 and 44, in case of Jane C. Clark, individually, and Jane C. Clark, as mother and natural guardian of Linda Clark, a minor, v. J. Leonard Clark, Pittsburgh National Bank, successor by virtue of consolidation and merger to Fidelity Trust Company, Helen M. Twaney et al. Orders affirmed.

COUNSEL

Carl Brandt, with him Brandt, Riester, Brandt & Malone, for appellants.

Malcolm Anderson, with him Robert Grier, II and Grier, Duggan, Hampsey & Ludwig, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 411 Pa. Page 252]

OPINION BY MR. JUSTICE ROBERTS

The instant controversy between Jane C. Clark, appellant, and her husband, J. Leonard Clark, appellee, comes to us out of a tangle of eight separate actions instituted by appellant,*fn1 arising from the same factual setting, and from which a single appeal was taken.*fn2

The parties were married on May 10, 1945, and are the parents of one daughter, born on July 1, 1948. Prior to their marriage, the husband's father, David L. Clark, died (February 3, 1939) leaving a will dated September 9, 1937, which created a spendthrift trust for the benefit of his children. The presently material portions of the will provide: "TWELFTH: All the rest, residue and remainder of my estate, ... I give, devise and bequeath ... in trust ... to pay ... the net income received therefrom" (to named children, including appellee).

"As each of my said children attains the age of fifty (50) years, the trust as to his or her proportionate

[ 411 Pa. Page 253]

    share of the principal shall terminate and the trustees shall assign, transfer and set over unto said child, his or her proportionate share of said principal."

"THIRTEENTH: Neither the principal nor the income bequeathed under this Will shall be assigned or anticipated by the beneficiaries named therein, nor shall the same be subject to attachment or execution in the hands of the Executors or Trustee."

In February of 1956, the Clarks separated and have been living apart since that time. On April 30, 1957, they entered into a separation agreement, by the terms of which the husband (then age 46) agreed to pay his wife $600 per month for her support and that of their daughter. Such payments, however, were reduced to $400 per month until August 1, 1961, and he agreed to make a lump payment of $10,000 on that date. He undertook also, prior to his reaching age 50, "to establish and create a Trust for the benefit of his wife and/or their daughter Linda Jane Clark" either in the amount of $90,000 or "30% of the amount to which the husband may be entitled from the trust in his said father's estate, less $10,000.00," whichever should be greater. He further agreed "to effect the payment into such [proposed] ...


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