Appeals, 152 and 188 | Pa. | Nov 24, 1942
The questions here presented are concerned with the proper distribution of a part of the residuary estate of Frazier P. Bilyeu. He died May 14, 1897, leaving the residue of his estate in trust to pay the income to his wife, Helen Van B. Bilyeu, for life, and upon her death "to apportion my estate into as many parts as there are then surviving children of myself and my said wife, or the children of any child who may have died leaving issue, such children of a deceased child to represent, share and share alike, the share the parent would have taken if living; and until each of said children or grandchildren attains the age of twenty-one years, to expend about the maintenance, support and education of such child or grandchild, the net annual income of the portion represented by him or her; and from that time, so far as the portions represented by my sons or grandsons are concerned, until each son or grandson becomes twenty-five years of age, to pay such income to each one personally; and as each son or grandson respectively attains the age of twenty-five years, then to transfer and pay over to him absolutely the portion of the principal of my estate which theretofore had been producing the income paid to such son or grandson. Should any of my said sons or grandsons die before attaining said age of twenty-five years, having left no children to survive him, then the portion of the income and principal of my estate represented by such son or grandson shall be divided among my surviving children or grandchildren as though it had formed part of the original estate apportioned among *136 such survivors. But as far as concerns the shares represented by my daughters or granddaughters, from the time each one attains the age of twenty-one years, for and during the terms of their natural lives, to pay to each one personally the net income produced by the share of the principal represented by her, and from and immediately after the death of such daughter or granddaughter, to distribute such principal represented by her, share and share alike among any children whom she may have left to survive her; or in default of such children, among my surviving children or grandchildren, as though it had formed part of the original estate apportioned among such survivors".
The widow died June 19, 1935, and upon an adjudication of the trustee's first account the principal of the residuary estate was awarded one-third to Harold D. Bilyeu, a son, one-third to the accountant in trust for Marion B. CcCarty, a married daughter, and one-third to the accountant in trust for Helen Van B. Bilyeu, a minor granddaughter, being the only child of Frazier P. Bilyeu, Jr., a son of testator who had died August 28, 1921. Marion B. McCarty died without issue December 7, 1939, and the present controversy is in regard to the further disposition of her share of the residuary estate. The court below awarded one-half thereof to the trustee for Helen Van B. Bilyeu (now, by marriage, Helen Van Brunt Aff) under the will of the testator, and the other half to the executor and trustee under the will of Harold D. Bilyeu, he having died on October 17, 1937.
The administratrix c. t. a. of the estate of Marion B. McCarty contends that the limitations following the life interest bequeathed to the widow are invalid because they violate the rule against perpetuities, the result being an intestacy which would entitle the estate of Marion B. McCarty to a one-third part of the entire residue. There is no justification for such a claim. At the widow's death the residuary estate was to be apportioned among the testator's then surviving children and *137
the children of theretofore deceased children. The persons who would thus take were necessarily ascertainable when the widow died and therefore their interests vested at that time. While it is true that a son or grandson was not to receive payment of his share of the principal until he became twenty-five years of age, this amounted only to a postponement of the possession and not of the gift itself; the testator's direction that the income should meanwhile be paid to the son or grandson indicated that a present gift was intended: Safe Deposit Trust Co. v. Wood (No. 1),
Helen Van Brunt Aff, to whom an award was made in trust under the will, contends that it should have been made to her outright, because of the general rule of construction that restrictions on original shares do not apply to subsequently accruing shares unless the intent *138
that they should do so is clearly expressed: Goodin's Estate,
Decree affirmed at cost of appellants.