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GANGWISCH ESTATE (11/26/73)

decided: November 26, 1973.

GANGWISCH ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Allegheny County, No. 1401 of 1949, in re estate of John P. Gangwisch.

COUNSEL

Robert G. Sable, with him Baskin, Boreman, Wilner, Sachs, Gondleman & Craig, for appellants.

Eugene B. Strassburger, III, with him Charles F. McKenna, and Strassburger & McKenna, for Virginia Hofman, appellee.

Samuel Y. Stroh, with him Frank W. Jones, for Pittsburgh National Bank, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 454 Pa. Page 478]

Appellants herein are the income and residuary legatees of the trust estate of the decedent, John P. Gangwisch. They took exception to the decree of the auditing judge of the Court of Common Pleas, Orphans' Court Division, of Allegheny County, which decree was entered on January 30, 1973. Their appeal involves the interpretation of Paragraph Third of the will of John P. Gangwisch, in which he established a residuary trust.

In Subparagraph (a) of Paragraph Third, the testator provided that the trustees pay the sum of $5,000 per year out of income and principal to the testator's widow, Frances Helen Gangwisch, during her lifetime, and in addition, the testator gave the trustees the discretion to spend so much of the income and/or principal of the trustee estate, for any purpose which

[ 454 Pa. Page 479]

    the trustees believed advisable for the best interests of testator's widow.

In Subparagraph (b) of Paragraph Third, testator provided as follows: ". . . The Trustees shall pay the sum of Twenty-Four Hundred Dollars ($2400.00) per year out of income, and principal if necessary, in monthly installments, to my daughter Virginia G. Hofmann, during her lifetime, and may, at their discretion, increase such annual or monthly payments if they believe it necessary or advisable for the maintenance, comfort and support of my said daughter, and her children, if any. In addition, the Trustees may expend so much of the income and/or principal of the trust estate as they shall believe necessary or advisable to meet any emergency or unusual condition confronting my said daughter, or for any purpose which the Trustees shall believe advisable for the best interests of my said daughter. Provided, However, that the payments of any increased amounts over and above Twenty-Four Hundred Dollars ($2400.00) per year shall be made only after due investigation by and satisfaction of my said Trustees that the same is necessary or advisable, and that it will not in any way jeopardize the amount payable to my wife, Frances Helen Gangwisch, as aforesaid."

In Subparagraph (d) of Paragraph Third, the testator provided that upon the death of his wife, "the income from my trust estate in excess of Twenty-Four Hundred Dollars ($2400.00) per year, if any, shall be paid to [the appellants] in the same proportions that the principal of my trust estate is to be distributed upon termination, as hereinafter provided."

Appellants contend that all of the discretion given the trustees in Subparagraph (b) to increase the income of Virginia G. Hofmann, testator's daughter, above $2400 per year out of income and/or principal is ...


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