Appeals from decree of Court of Common Pleas of Dauphin County, No. 766 of 1967, in re estate of Robert Pearson, deceased.
William H. Wood, with him Metzger, Hafer, Keefer, Thomas and Wood, for appellant, income beneficiary.
Bruce E. Cooper, with him Charles E. Friedman, and Cooper, Friedman & Friedman, for appellant, guardian and trustee ad litem.
Charles A. Woods, Jr., Deputy Attorney General, with him Fred Speaker, Attorney General, for Commonwealth, appellant.
R. J. Woodside, with him Woodside, Woodside & Zwally, for appellant, North Dakota State University, remainderman.
Walter K. Swartzkopf, Jr., with him Paul H. Rhoads, and Rhoads, Sinon & Reader, for appellee, administrator c.t.a.
James H. Stewart, Jr., with him Nauman, Smith, Shissler & Hall, for appellees, income beneficiaries.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen took no part in the decision of this case. Mr. Justice Roberts took no part in the consideration or decision of this case.
Robert Pearson (testator) died on July 27, 1967, leaving a holographic instrument dated January 7, 1958, and entitled "Will and Testimony" (will), which was admitted to probate and letters of administration c.t.a. were granted to Dauphin Deposit Trust Company (administrator).*fn1 Testator, a childless widower, was survived by six brothers and sisters, thirteen nephews and nieces and twenty-nine grandnephews and grandnieces.
The controversial portions of the will prompting these appeals are:
" It is the hope and prayer, that my estate, or the proceeds of my estate, be placed in trust for the benefit of the legal heirs, entitled to succeed to my estate.
" It is the further instruction that the proceeds of my estate be placed in a Trust Fund, under the management of a reliable Agency or Banking Firm, and administered throughout the life and period of the Estate, as long as there are living legal heirs. The heirs or beneficiary to share the income from the Trust Fund.
" The rate or partition shall be apportioned according to the number of living nephews and neices [sic], and thereafter equally proportioned to the surviving heirs. There shall be an exception provided in the aforestated declaration, in the event of special hardships. The first apportionment of the income from the Trust Fund shall accrue to the benefit of the brothers and sisters, during their life.
" When the Trust Fund has fulfilled its obligation to the heirs, and thereby spent its usefulness of
the legal requirements, the estate shall be awarded to benevolent organizations, educational Institutions, and Charities [hereinafter collectively termed 'Charities']."*fn2
The administrator filed its first and partial account and a petition for proposed distribution wherein it posed questions to be determined by the auditing judge and its suggested interpretation of testator's intent.*fn3 Thereafter, exceptions to the proposed distribution were advanced by the parties to these appeals. In its order, accompanied by an opinion, the court below rendered the following interpretation of testator's will: (1) testator created a valid trust; (2) the income from the trust fund is to be distributed among those of the testator's brothers and sisters who had children surviving at the time of testator's death with each share to be determined according to their respective number of said children;*fn4 (3) upon the respective deaths of testator's brothers and sisters, their shares of income are to be paid in equal proportion to their children for their lives or to the heirs of any deceased child and
so forth to testator's heirs ad infinitum; and (4) testator intended that, upon the death of his last collateral descendant, the corpus of the trust should be paid to charities. However, applying the Rule Against Perpetuities at the time of testator's death, the lower court voided the gifts to descendants after nephews and nieces as well as the gifts to charities and ordered a distribution of the corpus of the trust under the laws of intestate succession upon the death of testator's last surviving nephew or niece. Pearson Estate, 48 Pa. D. & C. 2d 607 ...