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CARTER ESTATE (10/09/69)

decided: October 9, 1969.

CARTER ESTATE


Appeal from decree of Orphans' Court of Philadelphia County, Oct. T., 1908, No. 124, in re estate of Henry L. Carter, deceased.

COUNSEL

Paul Maloney, with him James R. Ledwith, and Pepper, Hamilton & Scheetz, for appellant.

William H. Lathrop, with him E. A. Dixon, Jr., and Montgomery, McCracken, Walker & Rhoads, for appellee.

Peter M. Mattoon, with him H. Ober Hess, and Ballard, Spahr, Andrews & Ingersoll, for appellees.

John L. Harrison, Jr., with him Duane, Morris & Hecksher, for guardian and trustee ad litem.

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

Author: Bell

[ 435 Pa. Page 494]

This case arose in the Orphans' Court with the filing of a trustee's account in the Estate of Henry L. Carter. At the audit of this trust account, a petition for a declaratory judgment was filed by and on behalf of the executor of a deceased trust beneficiary, Alfred V. Leaman, 3rd. Alfred V. Leaman, 3rd, was the son of one of the daughters of the original testator who created this trust. In its adjudication sur the trustee's account, the Orphans' Court rejected the claim of said executor (1) for income after the death of Alfred V. Leaman, 3rd, and (2) also ruled in the declaratory judgment claim that Alfred's estate would have no interest in the principal of the trust upon its termination. Alfred's executor has appealed from this combined final decree.

Henry L. Carter died on July 16, 1907, leaving a will dated August 28, 1903. He was survived by his wife and by seven children. Testator's wife and all except one of the seven children have since died, four having left surviving issue.

By his will, Henry L. Carter created a trust for the benefit of the members of his immediate family and their issue; this trust is to terminate upon the death of the testator's last surviving child. Carroll H. Carter, age 75, is the testator's last surviving child and has no issue or living descendants.

This litigation is occasioned by the death, on February 9, 1966, of Alfred V. Leaman, 3rd, -- a grandchild of the testator -- without issue. Alfred was the son of Dorothy Carter Leaman, a daughter of the testator, who died in 1932. The facts are somewhat unusual and the issues somewhat unique, so we will repeat some of the hereinabove stated facts.

At the audit of this present trustee's account filed by Henry L. Carter's trustee, the executor of Alfred's will claimed (1) the share of trust income from the date ...


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