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DAY ESTATE (03/25/74)

decided: March 25, 1974.

DAY ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Lancaster County, Aug. T., 1930, No. 48, in re estate of George E. Day, deceased.

COUNSEL

John Milton Ranck, with him Charles Foltz Herr, Appel, Herr & Appel, and Ruppin, Ranck, Troback and Ranck, for appellant.

No oral argument was made nor brief submitted for appellee.

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

Author: Roberts

[ 455 Pa. Page 611]

Marjorie C. Day, the last surviving child of George E. and Ella R. Day, petitioned the Orphans' Court Division of the Court of Common Pleas of Lancaster County for termination of a trust created by her father's will. Marjorie alleged the purpose for which the trust, which now has corpus of only $8,783.52, was established has become impractical. The orphans' court refused to terminate the trust and Marjorie appealed.*fn1 We vacate and remand.

In his will, executed January 31, 1930, George E. Day provided that the residue of his estate be held in

[ 455 Pa. Page 612]

    trust by his daughter Marion and the Lancaster Trust Company. He directed that the income from the fund be used to "provide for the comfortable maintenance and support" of Marjorie.*fn2 George E. Day died July 9, 1930.

In 1926 Marjorie contracted encephalitis lethargicia (sleeping sickness). When her father executed his will she was still suffering from the disease. At that time sleeping sickness was considered incurable, and testator apparently believed that Marjorie would never recover.

In 1943 Marjorie suddenly and completely recovered; she suffered no residual brain damage. After her recovery appellant became a college professor and is now retired. During this time she has managed her own affairs. Testator's wife Ella died in 1959. Testator's only other child, Marion L. Day, died ten years later without issue.

Appellant's petition for termination of the trust requested the orphans' court to award her both the income and the corpus of the trust free of any restrictions.*fn3 The court concluded that although Marjorie was the sole income beneficiary, one half the corpus ...


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