Appeal, No. 296, Jan. T., 1963, from decree of Orphans' Court of Philadelphia County, No. 1139 of 1961, in re estate of Frank James, deceased. Decree vacated; reargument refused April 24, 1964.
Charles A. Woods, Jr., Deputy Attorney General, with him James L. Price, Special Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant, as parens patriae.
Barbara Ann Duffy, with her William C. Hamilton, and Fell & Spalding, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
Frank James died testate on March 22, 1960. In his will, admitted to probate by the Register of Wills of Philadelphia County, he created a life estate, in trust, of certain real estate and personalty, at the termination of which he directed sale of the assets and the addition of the proceeds to the principal of his residuary trust. He set aside a fund for the maintenance of the real property and directed that any balance from this fund also be added to the residuary trust. The unique terms of the residuary trust, which give rise to this litigation, provide as follows:
"SECOND: All the rest, residue and remainder of my estate, of whatsoever kind and wheresoever situate, I give, divise and bequeath unto my Trustee, hereinafter named, and its successors, IN TRUST NEVERTHELESS, to hold, invest, and reinvest the same to collect the income therefrom, and after paying all expenses incident to the management of the trust, to accumulate and to pay over the net income to THE RIGHT WORSHIPFUL GRAND LODGE OF FREE AND ACCEPTED MASONS OF
PENNSYLVANIA, for the use of the Masonic Homes at Elizabethtown, Pennsylvania as follows:
"(A) At the expiration of twenty years from the date of my death, 50 per cent of the net income received to date. The remaining 50 per cent of net income shall be added to the principal of this trust to be invested and reinvested in accordance with the terms hereof. Upon the receipt of this first payment of income, it is my request that an appropriate memorial tablet be erected by The Right Worshipful Grand Lodge of Free and Accepted Masons of Pennsylvania at the Masonic Homes in Elizabethtown, Pennsylvania, in honor of ELIZABETH STOTT JAMES AND FRANK JAMES.
"(B) Thereafter every twenty years on the anniversary date of the date of my death, Trustee shall pay over 50 per cent of the net income received since the last payment date and the remaining 50 per cent shall be added to the principal of this trust to be invested and reinvested in accordance with the terms hereof. This manner of payment shall continue until two hundred twenty years have elapsed from the date of my death.
"(C) Two hundred twenty years from the date of my death, my trustee is to increase the percentage of income payable to 75 per cent, and the other 25 per cent shall be added to the principal of this trust to be invested and reinvested in accordance with the terms hereof. This manner of payment shall continue every twenty years on the anniversary date of the date of my death until four hundred years have elapsed from the date of my death.
"(D) Four hundred years from the date of my death this trust shall terminate, and the principal of this trust and any accumulated and undistributed income shall be paid over to THE RIGHT WORSHIPFUL GRAND LODGE OF FREE AND ACCEPTED MASONS OF PENNSYLVANIA, for the ...