Opinion
April 17, 1940.
May 6, 1940.
Wills — Construction — Trusts — Prior limitations — Subsequent limitations invalid — Time of determination of validity.
1. Ordinarily, the validity of prior limitations is not affected nor disturbed by reason of the fact that the ultimate ones may transgress the rule against perpetuities. [397]
2. Under such circumstances, the validity of the ultimate limitations is not to be determined until the necessity for such decision arises. [397]
Argued April 17, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN and PATTERSON, JJ.
Appeal, No. 26, Jan. T., 1940, from decree of O. C. Pike Co., O. C. Docket "I", page 279, in Estate of Michael Uch, deceased. Appeal dismissed.
Petition and citation to show cause why trust should not be terminated.
Rule discharged, opinion by SHULL, P. J. Petitioners appealed.
Error assigned, among others, was order discharging rule to show cause.
L. B. Maxwell, for appellants.
James Rutherford, of Rutherford Rutherford, for appellee, was not heard.
This is an appeal from the order of the court below discharging a rule to show cause why the trust created by the will of Michael Uch should not be terminated as being in violation of the rule against perpetuities.
The will provided for life estates to testator's widow and two daughters, with remainders over. Petitioners, testator's daughters, contend that the remainders created by the will violate the rule against perpetuities. Even if this be conceded, it would have no effect upon the prior limitations which are admittedly valid: McCreary's Trust Est., 328 Pa. 513, 196 A. 25; Quigley's Est., 329 Pa. 281, 198 A. 85; Wanamaker's Est., 335 Pa. 241, 6 A.2d 852. Under such circumstances, "there is no occasion for presently deciding whether or not such invalidity exists; such decision must wait until the necessity for it arises": Quigley's Est., supra, 294.
The appeal is dismissed. Costs to be paid out of the estate.