190 Pa. 177 | Pa. | 1899
Opinion by
The question to be determined on this appeal depends on the construction of the will of Charles Edwards, deceased. The provisions of the will which have a direct bearing on the question are as follows : “ I order and direct my executors to invest the clear balance of my whole estate, real, personal or mixed, remaining after all debts, expenses and proper charges are deducted, in such securities, and at such rate of interest, as my said executors, or the survivor of them, in their discretion, may deem proper; and the interest or income thereof to re-invest in like manner as aforesaid, during the lifetime of my son George J. Edwards.
“And I order and direct my said executors, or the survivor of them, to pay unto my said son George J. Edwards, in monthly payments, for his maintenance and support, and not in any way or manner to be subject or liable to his debts, such sums as shall not in any year amount to over three hundred dollars.
“And after the death of my said son George J. Edwards, I give and bequeath all my estate in the hands and held in trust by my said executors, or the survivor of them, unto all the lawful child or children of my said son George J. Edwards, or to their heirs or legal representatives.”
The testator was, at the time of the execution of his will and for some time previous thereto, a widower, and he remained so. His son George J. Edwards was his only child. George had three children, Mary A., born July 31,1876 ; Clara Irene, bom November 26, 1878, and Charles F., born October 17, 1880. Clara Irene died May 5,1886 ; Mary A. and Girarles F. are still living.
Shortly after the death of the surviving executor of the Charles Edwards estate the orphans’ court of Lancaster county appointed the Lancaster Trust Company trustee of said estate with all the powers and duties pertaining to a proper administration of it. On the day the Lancaster Trust Company was appointed trustee of the Edwards estate an auditor was appointed to report distribution of the balance shown by Reed’s final account, “ to and among those legally entitled to the same.” The auditor, on March 19, 1898, awarded “the entire fund, consisting of principal and accumulations ” to the trustee. To this report exceptions were filed by George J. Edwards who contended that the direction to accumulate was illegal and void under the act of April 18,1853, and that as to all the accumulations of the income of the estate, the testator' died intestate, and that he, as the testator’s next of kin, was entitled to them. His contention was sustained by the orphans’ court and the accumulations were awarded to him. From the decree awarding them, as above stated, this appeal was taken.
The first and principal contention of the trustee is that “ the
“The Act of April 18, 1853, P. L. 503, relating to accumulations does not apply to a ease where neither the persons who are to take the principal from which the income is to be accumulated nor the persons who are to take the accumulated income can be ascertained until the time for distribution designated by the testator. In such case, the gifts are contingent, and the said accumulations go to the next of kin under the intestate act:” Martin’s Estate, 185 Pa. 51. In that case the testator had devised and bequeathed the residuary esiate to las executors in trust to invest the same and collect the income arising therefrom, until the death of his wife, Mary C. Martin, and directed that upon her death said income should be divided among his “ brothers and sisters then living, the survivors or survivor of them,” and that the principal of said estate should be equally divided among Ids nephews living at that time, per capita and not per stirpes, the child or children of any of his said nephews or nieces then deceased, taking its or their parents’ share.
in the case before us the time allowed, for accumulation was indefinite, being for the lifetime of George J. Edwards, which may extend beyond the statutory period and the lifetime of Isis children.
Decree añirmed and appeal dismissed at the cost of the ap. ¡tflllf.nl,