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SMITH ESTATE (06/27/69)

decided: June 27, 1969.

SMITH ESTATE


Appeals from decree of Orphans Court of Allegheny County, Nos. 5333 of 1965 and 3540 of 1967, in re estate of Laura Floyd Smith, deceased; and inter vivos trust created by Laura Floyd Smith.

COUNSEL

James C. Larrimer, with him Dougherty, Larrimer, Lee & Hickton, for appellant.

Harold R. Schmidt, with him Evans Rose, Jr., Henry McC. Ingram, and Rose, Schmidt and Dixon, for appellees.

George R. Craig, with him George Wilson McKeag and William McC. Houston, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 435 Pa. Page 259]

Samuel H. Smith, the brother of decedent (Laura Floyd Smith) died in 1962, leaving one-half of his estate to decedent and the other half in trust, the Union National Bank of Pittsburgh to act as trustee. The trust gave income to decedent for life, then income to Verner S. Purnell, the nephew of decedent and Samuel, for life, with the principal in equal shares to four named charities at the death of the survivor.

Decedent subsequently had her attorney draw a will for her following the same basic distributive pattern as did the will of her brother. On July 13, 1962,

[ 435 Pa. Page 260]

    decedent executed the will, leaving her tangible personal property to her nephew, Verner S. Purnell, $500.00 to one Andrew J. McCune, and the residuary one-half to Verner outright and one-half to the same four charities named in her brother's will.

On July 11, 1964, decedent entered into an agency agreement with the Union Bank, the bank to hold assets which she delivered to it, keep records, submit statements, remit income and principal to her at her request, review her investments and make recommendations, and submit income tax information to her. The agency agreement was terminable by either party upon thirty days written notice.

On November 1, 1965, decedent executed a new will and a revocable trust agreement, Union Bank to act as trustee. The new will gave personal effects to the nephew, $500.00 to Andrew J. McCune, and poured over the residue into the new trust. The trust gave decedent as much income or principal as she desired during her life, and at her death distributed the trust estate according to the same scheme utilized in the 1962 will -- one-half to the nephew and one-half to the four named charities. The new will further provided that "In the event that the trust agreement is not in effect at my death . . . I nevertheless give and devise my residuary estate to the Trustee, to be held under and subject to the terms and conditions of a trust exactly the same as those set forth in the Trust Agreement of November 1, 1965 as it exists at the execution of this, my Will, and for this purpose it is incorporated here by reference as though set forth in its entirety."

Decedent died on November 17, 1965. Her attorney had previously mailed her the signed ribbon copy of her 1962 will and had suggested that it be destroyed. It was not found after her death, but a conformed copy of her 1962 will, concededly made at ...


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