Appeal from the Order of the Court of Common Pleas of Philadelphia County, Orphans' Court Division, in the case of Estate of Mone S. Fridenberg, No. 3804 of 1931.
Edwin H. Rouh, Jr., with him Joseph C. Bright, Jr. and John A. Ballard, of counsel, Cuthbert H. Latta, Drinker, Biddle & Reath, for appellant.
Israel Packel, with him William R. Levy and William T. Tsiouris, of counsel, Fox, Rothschild, O'Brien and Frankel, for appellees.
Judges Rogers, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Williams.
[ 82 Pa. Commw. Page 101]
The Trustees of the University of Pennsylvania have appealed from a decree of the Orphans' Court Division of the Court of Common Pleas of Philadelphia County. The decree was one dismissing the University's exceptions to an adjudication by an auditing judge relative to the distribution of the remaining principal of a trust fund that had been created by Mone S. Fridenberg in 1931.*fn1
By the residuary clause of a will executed in early February 1931, Mone S. Fridenberg created a trust that was primarily for the benefit of his wife and sister.
[ 82 Pa. Commw. Page 102]
By the terms of the trust three named individuals, not including the testator's wife and sister, were to receive, out of trust income, annuities in the sum of $1,000.00 a year for life. The balance of the trust income was to go to the testator's wife and sister for their joint lives, and then to the survivor of the wife and sister.
The trust also provided that, upon the death of the survivor of the testator's wife and sister, the sum of $100,000.00 from the trust principal was to be paid to the Hospital of the University of Pennsylvania for its use. That gift included a direction that the recipient erect a memorial to the testator's parents. As to the remaining balance of the trust principal, the testator provided that the income therefrom was to be paid to the United Hebrew Charities of Philadelphia, until such time as that organization decided to erect a hospital, home or other charitable-purpose object as a memorial to his parents. If United Hebrew Charities decided to create such an object, the organization would receive one-half of the remaining principal for construction costs; and would receive, upon the completion of the memorial, the remaining trust principal for the keep, support and maintenance of the memorial.
As noted, the testator, Mr. Fridenberg, executed his will in early February of the year 1931. He died on February 19, 1931 -- fewer than thirty days after the execution of the will. The length of time between the execution of the will and the testator's death became significant, because of the "mortmain" provision in Section 6 of the Wills Act of 1917,*fn2 which was in effect
[ 82 Pa. Commw. Page 103]
when Fridenberg executed his will. Section 6 of that statute provided, in ...