No. 00092 HBG 83, Appeal from the Order entered February 17, 1983 in the Court of Common Pleas of York County Orphans Division, at No. 67-70-1149.
Larry W. Wolf, Hanover, for appellant.
Keith R. Nonemaker, Hanover, for Trustee, participating party.
Michael E. Dows, Hanover, for Minor Children, participating party.
Bartholomew J. DeLuca, Jr., Harrisburg, for 3rd Contingent, participating party.
Daniel M. Frey, Hanover, for Hanover & Trust, participating party.
Wickersham, Olszewski and Hoffman, JJ.
[ 334 Pa. Super. Page 637]
The issues on appeal are (1) whether the settlor evidenced an intention to accumulate the income in one trust and (2) whether his purpose for a second trust has become impractical or impossible of fulfillment. For the reasons set forth below, we reverse in part and affirm in part.
On March 7, 1964, the settlor created an inter vivos trust known as the "J. William Krebs Trust No. 2," (Trust No. 2) which authorized appellee, the Bank of Hanover and Trust Company, as trustee to "pay over and distribute the income and principal" in the amount of $5,000 annually (beginning January, 1965) to appellant, the settlor's daughter. The trust provides that, upon appellant's death, the "Trust Estate" is to be divided into equal shares and distributed among appellant's surviving children, with sub-shares going to the issue of any deceased children. These shares are to be paid to the children or their issue upon their reaching the age of twenty-one; until such time, they are to be held in trust. In the event that appellant, her children, and their issue should all die before the trust is "exhausted," the trust principal is to be divided equally between two other
[ 334 Pa. Super. Page 638]
trusts, not here in question, created by the settlor. If either or both of those trusts are no longer in existence at the time of distribution, those shares which were to be distributed to them are to be divided equally among several charitable beneficiaries.
On March 1, 1968, approximately four years later, the settlor created the "J. William Krebs Trust No. 5," (Trust No. 5) which authorized a $2,500 annual payment to appellant "[f]rom and after January 1 of the calendar year next succeeding the year in which the 'J. WILLIAM KREBS Trust No. 2' shall have been terminated. . . ." (Emphasis added). These payments, which are to continue for the life of appellant, are to be made from the trust income or, if the income proves insufficient, from the principal. Upon appellant's death, the "Trust Estate" is to be divided into equal shares among appellant's children, ...