Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Allegheny County, No. 1034 of 1962, in re Estate of Eleanor D. Merrick, deceased; appeal of the United States of America.
Stephen H. Hutzelman, with him Meyer Rothwacks, Crombie J. D. Garrett, and Johnnie M. Walters, Assistant Attorney General, for appellant.
Donald L. McCaskey, with him James G. Park, and Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen took no part in the decision of this case.
The issues in this case are (1) whether Eleanor D. Merrick at the time of her death in 1962 had any kind of a transmissible, and therefore taxable, interest in the remainder of the trust which her father, Herbert DuPuy, had created in 1916 for Eleanor's niece, Amy DuPuy McHenry, and Amy's surviving children and issue, and (2) whether the Orphans' Court had jurisdiction to determine this question sur a petition for declaratory judgment.
Herbert DuPuy was an exceedingly wealthy resident of Pittsburgh who had engaged extensively in real estate and financial matters. In the early part of 1916 (prior to April 26, 1916), four of Herbert DuPuy's five children were still alive. One of these four children was this decedent, Eleanor DuPuy Merrick, and another child was Amy DuPuy McHenry. Amy DuPuy McHenry died on April 26, 1916, shortly after giving birth to a daughter also named Amy DuPuy McHenry.*fn1
Within a relatively short period after Amy's birth, it was recognized that this granddaughter Amy was mentally incompetent. Amy is still alive, but continues in that unfortunate condition today.
On June 15, 1917, Herbert DuPuy divided all of the stock in his two family-controlled real estate holding companies (Morewood Realty Holding Co. and Lansing Realty Holding Co.) into four equal parts each worth about $4,100,000. Herbert DuPuy gave three of these four parts outright to his three then living children, and the fourth part or share to a trust which he created for the benefit of his granddaughter Amy.*fn2 Herbert DuPuy was the trustee under all of the trusts he created, and he personally managed the trust assets until his death in 1930.
We note, because it may become important, that Herbert DuPuy, who was not an attorney, personally drafted the trust which he created for Amy's benefit. This trust, after describing the property placed in the trust, pertinently provides as follows:
"That I hold the securities above mentioned, together with all the income derived from the same in trust to pay and deliver same with the accumulations thereon to my said granddaughter, Amy DuPuy McHenry, at such times and in such ways as are hereinafter mentioned.
"Reserving to myself and my successor or successors and at my and their discretion, the right to apply all or any proportion of the income arising from said securities to the education and maintenance of my ...