Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Philadelphia, July T., 1904, No. 315, in re estate of Thomas G. Morton.
Samuel S. Logan, Jr., with him Kirk T. Karaszkiewicz, and Montgomery, McCracken, Walker & Rhoads, for appellants.
Austin M. Lee, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.
This case presents a difficult question involving the application of the Rule Against Perpetuities.*fn1 At issue
is the validity of gifts in remainder to three of testator's great grandchildren, following successive life estates to his children and grandchildren where similar gifts are invalid because grandchildren were born subsequent to testator's death.
Thomas G. Morton died testate on May 20, 1903, and was survived by his wife, three daughters and two sons. He bequeathed his residuary estate in trust and directed the trustees to pay two-thirds of the net income to his wife for life, and one-third to his daughter, Bertha, for her life. Testator further provided that, upon the death of his wife, the trustees were to pay her share of income equally to his daughters, Helen and Isabella, for their lives and, upon their respective deaths, their income was to be paid to their children for life with remainders over to their issue per stirpes. Upon the death of Bertha, her share of income was to be distributed equally to her children for their respective lives and, upon the death of each of them, the principal from which the one dying had been receiving income was to be paid to his or her issue per stirpes. Testator made no provision for his sons in the disposition of the residuary estate.*fn2
Bertha was survived by five children: Thomas, Samuel, Isabel, Clair and James. Clair is alive and a share of the estate continues for her benefit. Isabel died without issue and, since no provision was made in the will for this contingency, her share passed by intestacy as an undisputed share of the testator's estate. Thomas, Samuel and James have also died, all survived by issue.
The death of James initially raised the question of the validity of the remainders provided for testator's great grandchildren. Since James was not born during his grandfather's lifetime, the remainder following his death might not have vested within the permissible period provided by the Rule Against Perpetuities. The remainder was found invalid and the interest passed by intestacy through the estate of the testator. Morton Estate, 50 D. & C. 2d 8 (Phila. C. P. 1970).
The interests of Thomas and Samuel are the subject of this appeal. Both were born in testator's lifetime and they were survived by children. The appellants are the children of Thomas and Samuel (great grandchildren of testator), who claim their parents' shares as remaindermen under the express terms of testator's will. The auditing judge in the Orphans' Court Division of the Court of Common Pleas of Philadelphia rejected this claim and struck down appellants' remainders, reasoning that failure to apply to appellants the Rule Against ...