Opinion
March 26, 1963.
April 16, 1963.
Decedents' estates — Future interests — Rule against perpetuities — Remainder gifts — Vertical separability.
1. In determining whether a gift to a class violates the rule against perpetuities, legal remainders may be separated from illegal remainders; and an invalid remainder to a hypothetical after-born child does not affect the validity of a remainder which had to vest within a life or lives in being and twenty-one years, if at all. [381-2]
2. Harrah Estate, 364 Pa. 451, followed. [382]
Mr. Justice BENJAMIN R. JONES and Mr. Justice COHEN concurred in the result.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 47, March T., 1963, from decree of Orphans' Court of Allegheny County, No. 855B of 1939, in re estate of Benjamin F. Jones, deceased. Decree affirmed.
Same case in court below: 29 Pa. D. C.2d 437.
Audit of account.
Adjudication filed confirming account absolutely, exceptions dismissed and final decree entered, opinion by WOLK, J. Exceptant appealed.
David B. Buerger, with him Glenn B. Reed, Jack G. Armstrong, Charles C. Stilley, and Buchanan, Ingersoll, Rodewald, Kyle Buerger, for appellant.
J. Garfield Houston, with him J. Henry O'Neill, and Blaxter, O'Neill, Houston Nash, for appellees.
Joseph G. Robinson, David M. Gilmore, Mason Walsh, Jr., and Reed, Smith, Shaw McClay, for appellee.
Robert L. Kirkpatrick, and Kirkpatrick, Pomeroy, Lockhart Johnson, for estate, appellee.
Appellant contends that the remainder interest in the residuary clause of testator's will, i.e., a gift to a class, violated the Rule against Perpetuities and therefore an intestacy resulted, and appellant became entitled to an interest in the principal of the invalid residuary trust. The Orphans' Court held that the Rule was not violated in its application to this will. While it has several times been said that no will has a twin brother, the language of the Jones' will bequeathing and devising the remainder interest in controversy is so similar to the language in Harrah's will, viz., Harrah Estate, 364 Pa. 451, 72 A.2d 587, that this case is ruled by that decision.
Newlin Estate, 367 Pa. 527, 536, 80 A.2d 819; Burleigh Estate, 405 Pa. 373, 379, 175 A.2d 838; Henderson Estate, 405 Pa. 451, 455, 176 A.2d 428.
The Decree of the lower Court is affirmed on the able opinion of Judge WOLK, which is reported in 29 Pa. D. C.2d 437. Each party to pay own costs.
Mr. Justice BENJAMIN R. JONES and Mr. Justice COHEN concur in the result.