Harold R. Prowell, John D. Kuhn, Harrisburg, for appellants.
Heath L. Allen, Harrisburg, for appellee Mary Blough Vollmer.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case.
Burton F. Blough (Testator) executed a will on February 11, 1927, which took effect upon his death, May 30, 1928. After making specific bequests to his wife, to his only child (appellee Mary Blough Vollmer, then Mary Blough Wagner), and to a charity, he directed that the residuary of his estate be placed in trust. The will directed the trustees
"to pay the income therefrom . . . unto my wife, Irene C. Blough, and my daughter, Mary Blough Wagner, share and share alike, at such times as may be practicable, and at or upon the decease of my wife I direct that her share of the income shall be paid to my daughter, and at or upon the decease of my daughter I direct that her share of the corpus of my estate, including that upon which my wife received income, shall be distributed among her children, and if the child or children should be deceased, her grandchild or grandchildren shall represent their parent in such distribution."
Testator's wife died on November 11, 1944, and appellee became the sole income beneficiary of the trust. Appellee had only one child, Mary Patricia Wagner, who died without issue on March 26, 1974. By her will she bequeathed her residuary estate to appellee.
On January 23, 1975, appellee petitioned the Orphans' Court Division of the Court of Common Pleas of Dauphin County for termination of the trust. Appellants, collateral heirs of the testator (issue of testator's brother and sister), filed an answer to the petition objecting to termination of the trust. On June 22, 1976, the orphans' court granted the petition and terminated the trust. We affirm.*fn1
The question presented is whether appellee, through her daughter's will, obtained a vested right to the remainder interest in the corpus of the trust, justifying termination of the trust.
Appellee contends that the testator created a vested remainder in his grandchild, appellee's daughter, subject to divestment upon occurrence of the condition subsequent that she predecease the life tenant and die with issue. Appellee argues that since her daughter died without issue, the condition subsequent can never occur; thus, the remainder interest passed to appellee by her daughter's will, causing a merger of the remainder interest with appellee's life estate. Appellee maintains that the sole purpose of the trust was to preserve the principal for the remaindermen. Since appellee's age (76 years) renders the possibility of additional remaindermen extremely remote, appellee submits that the trust no longer serves any purpose and should be terminated.
Appellants contend that the testator's intention was that the remainder of his estate go to living persons, as evidenced by the substitutionary gift to great grandchildren should their parents be deceased at the time the life estate terminates. They argue that the grandchild's remainder interest
was contingent upon her surviving the life tenant, and could not be passed to appellee, since it never vested. Appellants further assert that, since there are no living grandchildren or great grandchildren of the testator, the trust principal should be distributed among testator's statutory heirs living at the time appellee's life estate terminates. Alternatively, appellants argue that even if the ...