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DERHAM ESTATE (11/11/69)

decided: November 11, 1969.

DERHAM ESTATE


Appeal from decrees of Orphans' Court of Montgomery County, No. 50,654, in re estate of Christina M. Derham, deceased.

COUNSEL

Littleton W. Roberts, Jr., with him Harold D. Greenwell, and Greenwell, Porter, Smaltz & Royal, for appellant.

John J. Lombard, Jr., with him Richard V. Zug, David F. Maxwell, and Obermayer, Rebmann, Maxwell & Hippel, for appellee.

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

Author: Bell

[ 435 Pa. Page 591]

The basic question in this case is when the principal vested.

At the audit of the third and final trustee's account in the Estate of Christina M. Derham, Helen M. Derham, the widow of Philip A. Derham, who was a deceased son of the testatrix, filed a claim for a one-fifth

[ 435 Pa. Page 592]

    interest in the principal and income of the trust. The balance of principal for distribution, arising from the sale of real estate, was $142,000. The Orphans' Court rejected Helen's claim, and from its final Decree she took this appeal.

Christina M. Derham died February 16, 1945, leaving a will dated April 4, 1935. She had six sons who were living when she made her will: two predeceased her, (1) Walter Derham, who left no children, and (2) John F. Derham, who left two sons, James Joseph Derham and John Francis Derham, both of whom are still living. Testatrix's sons (3) Enos J. Derham and (4) Paul Derham are still living; testatrix's son (5) James P. Derham (who was her executor and trustee) died in 1956 without children or issue; and her other son (6) Philip A. Derham, who was claimant's husband, died in 1962, leaving no children or issue. Helen, the claimant, is the sole beneficiary of Philip A. Derham's estate.

The pertinent provisions of testatrix's unusual will are as follows:

"First: I . . . appoint my son, James P. Derham, to be the Executor and Trustee of this my last will . . . and if, for any reason, he is unable so to act because of death or otherwise, I . . . appoint The Bryn Mawr Trust Company, of Bryn Mawr, Pa., to be his succeeding Executor and Trustee, granting unto it the same power and authority*fn1 as I have herein vested in my said son, James P. Derham.

"Sixth: I give, devise and bequeath all of my real estate unto my Executor and Trustee in trust, nevertheless, upon the following terms and conditions, and for the uses ...


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