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2014 PA Super 203
RE: IN THE MATTER OF ESTATE OF IN THE SUPERIOR COURT OF
GEORGE MCFADDEN, DECEASED PENNSYLVANIA
APPEAL OF: RANDOLPH HARRISON,
ROBERT C. HARRISON, CO-TRUSTEES
AND BENEFICIARIES, AND RANDOLPH
HARRISON, JR., BENEFICIARY OF THE
TRUST UNDER WILL OF GEORGE
MCFADDEN F/B/O THE DESCENDANTS
OF EMILY B. STAEMPFLI
No. 2872 EDA 2012
Appeal from the Decree of August 14, 2012
In the Court of Common Pleas of Delaware County
Orphans' Court at No.: 0028-1931
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
ALLEN, J. OTT, J., WECHT, J., STABILE, J., and JENKINS, J.
OPINION BY WECHT, J.: FILED SEPTEMBER 18, 2014
The above-captioned
August
1
terminated on
or about February 21, 2012, twenty-one years after the death of D
Ms. Staempfli was the measuring life for purposes of the Trust. We reverse.
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1
This is at least the third time that a controversy related to the will of
Decedent has come before the appellate courts of this Commonwealth.
See , 112 A.2d 148 (Pa. 1955); In re Girard
Trust Co., 23 A.2d 454 (Pa. 1942).
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Genesis-like account of the genealog
whose interests are implicated in one way or another by the interpretation of
the Trust. See -11. As
dition of
other trusts spawned by the Trust, the trustees associated with those trusts,
termination. See id. at 4-7.
Appellants here raise only one overarching question, as to which there
determining who among three candidates constituted or constitutes the
measuring life for purposes of the termination and distribution of the Trust
principal. In resolving this question, our discussion proceeds as follows:
First, we review the rule against perpetuities. Thereafter, we scrutinize the
excluding the many descendants of Decedent mentioned by th
arguments,2 and we decide this appeal.
Our Supreme Court has defined perpetuities as follows:
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2
Appellees, including beneficiaries other than those among Appellants,
en banc session, but they did not present
oral argument in this matter.
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Perpetuities are grants of property, wherein the vesting of an
estate or interest [is] unlawfully postponed; and they are called
perpetuities not because the grant, as written, would actually
make them perpetual, but because they transgress the limits
which the law has set in restraint of grants that tend to a
perpetual suspense of the title, or of its vesting.
, 80 A.2d 819, 822 (Pa. 1951). The applicable rule
which . . . may not become vested within a life or lives in being at the death
of the testator and twenty- ,
159 A. 874, 876 (Pa. 1932).
More recently, this Court discussed the three-stage evolution of the
rule, only the first two steps of which inform our analysis of the instant case:
The evolution of the rule against perpetuities in the area of class
gifts has had three distinct developmental stages in
Pennsylvania. The first stage began with the founding of
Pennsylvania and lasted until 1929. During this period,
Pennsylvania followed the early common[-]law rule against
perpetuities[,] which then called for the remorseless application
interests. Under this rubric, a future interest, such as a
remainder in a trust to all great-grandchildren, was void if there
was even the slightest possibility that it might vest beyond the
permissible period of a life or lives in being plus twenty-one
years.
The second stage of development was a transitional period which
lasted from 1929 to 1947. During this time period, our Supreme
Court attempted to eliminate some of the harsher results which
occurred in the area of the class gifts under the common[-]law
doctrine of vertical separability. The doctrine of vertical
separability held that valid remainders would be separated from
void ones and given effect if it would not alter the overall
testamentary scheme of distribution.
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In re Estate of Weaver, 572 A.2d 1249, 1253 (Pa. Super. 1990) (citations
omitted).3,4 It is important to note these two distinct stages of trust
interpretation and application because, as discussed below, our analysis
30
Will. Decedent must be presumed to have known of the harsh results that
might follow from providing in trust for beneficiaries defined as a class under
the law in 1928. Decedent must be presumed to have been equally aware
that, in 1930, the separability test would protect against the risk that a
substantial portion of the Trust would be voided simply because one or more
members of a specified class might be ineligible to serve as lives in being or
otherwise take under the Trust. te, 137 A. 627,
629 (Pa.
City of
Philadelphia v. Davis, 1 Whart. 490, 502 (Pa.
be presumed to know how the law stood at the time of making his
will . . .
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3
The third stage, what we described in Weaver
commenced in 1947 with the passage of the Intestate, Wills and Estates Act
future interests. See 572 A.2d at 1253.
4
It appears that Lockhart was decided based upon the approach to
class gifts that applied during the first stage described in Weaver, while the
instant Trust is subject to the less strict principles that arose during the
second stage. Lockhart he overarching contours of the
rule, however, suffices for our purposes.
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Having set forth the legal background against which the current case
inform the question sub judice:
ARTICLE FOURTH: I give, devise and bequeath all the rest,
residue and remainder of my estate, and I also give, devise and
bequeath all estates or interests over which I have power of
appointment . . . IN TRUST, for the following uses, to wit:
****
(3) . . . IN TRUST, as to all the rest, residue and remainder of
my estate, . . . to pay and distribute the net income thereof as
follows: [describing the first-priority distribution schedule of
. . . during the lifetime
of my wife, IN TRUST, to receive and apply the balance of the
net income of my estate as follows: To pay monthly, as nearly
as possible, in the proportion of two parts of the balance of the
net income to each of my sons, and one part thereof to each of
my daughters, living at the time of my death, or to the
respective issue living at the time of my death of a
deceased son or daughter, such issue being entitled to
each of such children or issue of a deceased child living at
the time of my death. . . .
Upon the death of each child of mine living at the time of
my death, and upon the death of each of the issue living
at the time of my death of a deceased child of mine, to pay
the income of such child or issue of a deceased child, in the
proportions above provided, meaning thereby that whenever a
descendant of mine shall die leaving male and female children,
the income shall be divided in such a way that the males shall
receive twice as much income as the females, to and among the
child or children of such child or issue of a deceased child, per
stirpes and not per capita, for the period of twenty-one
years after the death of the last survivor of the children
and issue of deceased children of mine living at the time
of my death.
****
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And IN TRUST, upon the expiration of the period of twenty-
one years after the death of the last survivor of the
children and issue of deceased children of mine living at
my death, to pay over to my descendants, per stirpes, a
proportion and division of the principle of my residuary estate
equal to the proportion and division of income hereinbefore
provided and directed for my children or issue of deceased
children, namely, the proportion of two (2) shares for each male
and one (1) share for each female.
It being my intention that the income from my residuary estate
shall be paid in the proportions of two parts to my sons and
their issue and descendants, and one part to my daughters
and their issue and descendants, per stirpes; that the same
plan shall be followed in the division of income among the male
and female children of my children and their issue; and that
the principle of my residuary estate shall be divided in the same
proportions.
1930 Will at 2-7 (emphasis added to highlight language pertinent to our
analysis).
The most critical provisions are those that address the rule against
perpetuities. In relevant part, that language provides for the distribution of
-one years
after the death of the last survivor of the children and issue of deceased
Id. at 6. We join Appellants and the
5
of this language as ambiguous.
____________________________________________
5
court stated that the language is ambiguous, its ultimate resolution of the
case is difficult to construe as having been based upon that proposition.
See Brief for Appellants at 32. Compare O.C.O. at 12 (noting that it
directed a hearing solely to resolve the ambiguity) with O.C.O. at 21
(Footnote Continued Next Page)
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Either of the following two interpretations of that language is
reasonable: (1) That the life in being whose death would trigger the twenty-
one year perpetuities count-
children, all of whom were alive at the time of his death, survived his or her
siblings; or (2) That the life in being whose death would trigger that count-
his death survived the other. The first interpretation stems from the
children would become the
measuring life only if the parent of the issue in question predeceased the
Decedent. The second is based upon the contrary proposition that the issue
of a child would become the measuring life simply for being alive at the time
o
deceased children of mine living a
ruled that the Trust terminated on or about February 21, 2012, twenty-one
die, with the principal subject to immediate distribution amongst surviving
beneficiaries as specified by the 1930 Will. If the latter interpretation were
_______________________
(Footnote Continued)
that the language alone compelled its ruling, rather than the suite of non-
textual factors typically used to resolve ambiguities in will language.
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the case, however, termination would occur twenty-one years after the
death of the survivor of the two grandchildren (each the issue of one of
ruling; if the survivor of those grandchildren is the measuring life, then the
Trust would terminate at some time in the future, twenty-one years after the
death of the survivor of those two grandchildren.6
by the following standards:
In Houston Estate, 201 A.2d 592, 595 (Pa. 1964), the Court,
quoting from prior decisions, said: * *
(1)
and (2) that his intent must be gathered from a consideration of
(a) all the language contained in the four corners of his will and
(b) his scheme of distribution and (c) the circumstances
surrounding him at the time he made his will and (d) the existing
facts; and (3) that technical rules or canons of construction
should be resorted to only if the language of the will is
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6
on of the rule against perpetuities is not disputed
in this case. Because the greater duration of the Trust argued for by
Appellants still would occur within twenty-one years of the end of the
surviving grandchild of the two grandchildren who were alive at the time of
Cf. Stephens v.
Dayton, 70 A. 127, 128 (Pa. 1908) (finding that a trust conformed to the
rule against perpetuities because, In no contingency . . . can the trust be
extended beyond the life of a surviving grandchild who was living at his
. We set forth at length the history of the rule above
because the transition between the first and second stage of development,
as set forth in Weaver, supra, occurred between De
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reason uncertain: , 168 A.2d 337;
Estate, 162 A.2d 626; , 159 A.2d 201;
, 159 A.2d 197.
Estate of Moltrup, 225 A.2d 676, 678 (Pa. 1967) (citations modified);
cf. , 112 A.2d 148, 150 (Pa. 1955) (hereinafter,
McFadden II
an end . . . . When
the intention of the testator can be ascertained by an examination of his
* * technical
rules or canons of construction are unnecessary . . .
In re , 97 A.2d 75, 80 (Pa. 1953)) (asterisks in
McFadden II)). When a will is ambiguous on its face, a court may consider
Estate of McKenna, 489
A.2d 862, 867 (Pa. Super. 1985).
In In re Estate of Rider, 711 A.2d 1018 (Pa. Super. 1998), we
set forth the following standards applicable to the interpretation
of wills.
****
When interpreting a will, we must give effect to word and
clause where reasonably possible so as not to render any
provision nugatory or mere surplusage. Further, technical
words must ordinarily be given their common legal effect
as it is presumed these words were intentionally and
intelligently employed, especially where they are used by
someone learned in probate law.
****
Rider, 711 A.2d at 1021 (quoting In re Estate of Harrison,
689 A.2d 939, 943 (Pa. Super. 1997)).
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****
[e]xtrinsic evidence of
surrounding facts must only relate to the meaning of
ambiguous words of the will. It cannot be received as
s intention independent of the
written words employed , 128 A.2d
52, 55 (Pa. 1956).
In re Shultheis, 747 A.2d 918, 922-23 (Pa. Super. 2000) (citations
construction lead to a result that is highly improbable, the court will lean
toward a construction that will carry out the natural intention of the
In re Trust Estate of Pleet, 410 A.2d 1224, 1230 (Pa. 1980)
(quoting , 160 A. 724, 725 (Pa. 1932)).
Finally, the interpretation of a trust or a will presents a question of
law. In re Barnes Foundation, 683 A.2d 894, 898 (Pa. Super. 1996). As
such, our standard of review is de novo, and our scope of review is plenary.
In re Estate of Livingston, 612 A.2d 976, 981 n.2 (Pa. 1992). Our
Barnes, 683 A.2d at 898.
In interpreting the Trust to embody the shorter of the two available
o rely heavily upon a small
subset of the available extrinsic evidence, principally the intervention of the
1930 Wills, and the differences between those wills. O.C.O. at 16-17, 20-
21. Notably, the extrinsic evidence in question was used by the court not so
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intent generally, an interpretive practice disfavored under the rule
enunciated in Shultheis and Beisgen, supra
ultimately appears to have relied more upon a review of the language of the
1930 Will and its overarching testamentary scheme than on the Great
Depression-related factors the court nonetheless discussed at some length.
See supra at 7 n.5.
distribution of the balance of net income after the distribution of specific
such residual income t
at the time of my death of a deceased son or daughter, such issue being
see 1930 Will at 5, indicated that
such a grandchild would not share in income unless his or her parent had
predeceased Decedent, an interpretation that, by itself, seems obvious.
O.C.O. at 15-
conclusion:
[Decedent] wanted to provide for his wife and children, but
protect their inheritances by having the money held and
managed by a corporate trustee . . .; two (2) partners in the
firm in which he was a senior partner . . .; and his son . . . . The
assets of his estate for the benefit of his family can be seen from
the turbulent times affecting the Decedent in January of 1930,
which is when he drafted his will.
Id. at 16.
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followed and superseded the 1928 Will, and that the two wills straddled the
stock market crash of October 29, 1929. Both wills provided similarly for
the distribution of income, and ultimately the principal, in the same two-to-
one allocation between male and female issue, respectively. What the 1928
Will lacked that the 1930 Will included, however, was specific language
concerning how long the Trust would last before its termination. To wit, only
the 1930 Will included the life in being language at issue in this appeal; the
1928 Will did not.
The intent of the Decedent becomes quite clear when the two (2)
testamentary documents stand side by side. In the [1930 Will],
the Decedent was expressly prescribing how long the [T]rust
would operate to benefit his children and that would be for the
The generation
to the same share.
In the 1928 [W]ill, the termination provision . . . recites:
And IN TRUST, on the death of each child or grandchild of
mine living at the time of my death, to pay over to the
descendants per stirpes of such child or grandchild living at
the time of my death a principal amount of my residuary
estate, ascertained by and in the proportions and divisions
of income hereinafter provided for each child or
grandchild . . . .
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The above-stated provision calls for a staggered dissolution of
the trust. The [T]rust is gradually reduced or dissolved as a
share of the residuary estate is calculated and paid . . . .
The termination provision contained in the [1930 Will] calls for a
uniform date for the dissolution of the [T]rust and distribution of
the [T]rust assets, thereby [e]nsuring that a share of the
residuary estate is not subject to turbulent market conditions
that may cause a reduction in value because of the uncertain
economy. The uniform date for dissolution evens the risk of loss
between all beneficiaries.[7] Furthermore, the termination
If the Decedent intended that the survivor of his granddaughters
would be the measuring life, he would not have uttered the word
. . . .] A fortiori, the only reasonable interpretation is
that the Decedent intended that the [T]rust established by [the
1930 Will] would terminate twenty-one (21) years after the
death of his last surviving child if all of his children survived his
death, which they did. The only reasonable interpretation, which
would allow for the survivor [of the grandchildren alive at the
predeceased Decedent].
O.C.O. at 19-
and the concomitant distribution of the Trust principal was that of the
ren, because all of them were living at the
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7
In relying upon this inference, th
without support in the text of the 1930 Will or its overall scheme that
Decedent intended that all trust beneficiaries (rather than only some subset
of beneficiaries) would experience a financial loss in the event that the Trust
terminates during a negative financial cycle.
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February 21, 2012, twenty-one years after the death of Emily Staempfli,
8
Appell
conclusion that he intended for the Trust to last for the maximum time then
9
Appellants assert that trust settlors typically craft perpetuities language to
sustain the life of the trust as long as legally permissible. However, by using
court interpreted the 1930 Will to provide for an intermediate duration of the
Trust rather than the greatest duration permissible by law. The court did so,
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8
concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellants timely complied. Thereafter, th
This appeal first was heard by a three-judge panel of this Court, which
this Court entered an order withdrawing its December 31, 2013
-
argument en banc.
9
Our citations to Appe
Appellants on Reargument En Banc. While this brief departs in certain
particulars from the brief originally submitted to this Court in furtherance of
a three- terially the same.
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Appellants emphasize, without any textual or extrinsic indicia that Decedent
intended such an outcome. Id. at 34-35.
Appellants focus first on the language of the 1930 Will and the
overarching scheme of distribution. Appellants emphasize that the scrivener
took great care in the Will to specify precisely when certain will provisions
were to apply. They invite this Court to examine the provision concerning
the payment of income to beneficiaries found in the fourth article of the
provision indicated that i
of my death of a deceased son or daughter, such issue being entitled to their
Id. at
initial beneficiary of income, he or she would have had to be issue of a son
when the payments were
to commence Id. at 37 (emphasis in original).
Appellants also note that subparagraph (3), in providing secondary
of mine living at the time of my death, and upon the death of each of the
Appellants argue that thes
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endure as long as the law in 1930 allowed. See, e.g., 1930 Will at 7
my children and their issue
Appellants next argue that this interpretation is consistent with the
scheme of distribution, especially viewing the 1930 Will in tandem with the
1928 Will that it replaced. Appellants note that the 1928 Will provided for
the distribution of various shares of that
distribution and concomitant depletion of Trust assets over time. Brief for
Appellants at 41-43. The 1930 Will, by contrast, provided for a single
termination date upon which the entire principal would be distributed to
those entitled to a share of it. To that end:
[T]he Perpetuities Clause in the 1930 [W]ill . . . greatly
lengthened the duration of the [T]rust. Rather than having each
trust share end at the death of each initial beneficiary, the [1930
Will] described a class of potential measuring lives and provided
that the actual measuring life would be that of the person who
lived the longest. And then, in accordance with what
Pennsylvania law allowed at the time to further lengthen the
[T]rust would last for 21 years after that measuring life expired.
Id. at 42. Thus, the overarching scheme of Trust distribution indicated that
Decedent intended to give the Trust the longest duration then permissible
under Pennsylvania law. Id. at 42-43.
Appellants find further support for their interpretation in the fact that
the Trust neither allowed the trustees to invade the principal in their
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discretion for the benefit of needy beneficiaries nor provided any power of
appointment to any individual. Id. at 43-46. Appellants posit that
Id. at
Id. at 45.
Moving to the next Moltrup consideration, Appellants address the
circumstances surrounding Decedent at the time he prepared his Will. They
emphasize that Decedent was only fifty-six years old at that time and had
just witnessed the 1929 birth of his first grandchild. Thus, while the
that the preparation of the two wills straddled in time, so too was the birth
identified grandchildren as potential measuring lives; they had not been
mentioned as such in the 1928 Will, only implicitly Id. at 46. As
restrictions on the investments that his trustees could make, in an effort to
shield the [T]rus Id.
at no evidence that [Decedent] intended
that the secure source of income that [the Trust] provided to his
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descendants should last for any shorter period than the maximum duration
Id. at 47-48 (emphasis in original).
Appellants also maintain that the prosperous endurance of his firm,
George H. McFadden & Bro., was a priority for Decedent in the fashioning of
the Trust. See id. at 43-44. For ex
becoming partners in the firm of George H. McFadden & Bro., or any
t
against their share of the estate solely for use toward capitalizing any such
partnership. However, that provision also called for the immediate maturity
of the loan in the event the
Id. at 8. Appellants further note that
a statement of testimony to be given in prior litigation concerning the 1930
-recent experience of the financial fall-out from the
large with
leading Mr. Browning and another party to take out a $1 million life
insurance policy on Decedent to hedge against precisely that
See Exhibit H-2, Memorandum for Trial in McFadden v.
United States, Memorandum of Testimony to be given by Mr. Edward
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Browning, Jr.10 As well, in another statement, the scrivener of the 1928 and
Id., Memorandum of Testimony to be given by [John
the firm, Appellants posit, effectively necessitated, in the long-term interests
of his surviving and future partners, that the principal of the estate remain
undisturbed for as long as possible.
We begin our analysis by parting ways from what we believe to be the
the perpetuities clause to the death of the surviving child or issue of a
deceased child, Decedent indicated that any grandchild of his who was alive
at
underscored the fact that Decedent, had he wanted to extend the
perpetuities clause to count any grandchild
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10
A federal district court opinion concerning the litigation in which these
statements appeared as exhibits may be found at McFadden v. United
Statese, 20 F.Supp. 625 (E.D. Pa. 1937).
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from the language of the clause. O.C.O. at 20-21.
We agree that, taking the clause in isolation, this is a reasonable
inference. Yet, we disagree that it is the only reasonable inference. Were
we to base our determination strictly upon such conjectures, we would be
bound to acknowledge that Decedent might just as readily (and perhaps
language might militate in favor of one or the other outcome, however, is
not dispositive, inasmuch as none of these observations emerges by itself as
preferable to the others. Consequently, we must disagree with the learned
usive of the
question.
the case. Specifically, in the income distribution-related provision, Decedent
used th
deceased
grandchildren was in line for distributions only in the event that their
However, in connection
with the perpetuities language, Decedent twice employed the conjunctive
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Compare 1930 . . . the net income to each of my
sons, . . . and to each of my daughters, living at the time of my death, or to
the respective issue living at the time of my death of a deceased son or
daughter . . . with id. at 6 (describing expiration of
n of the period of twenty-one years
after the death of the last survivor of the children and issue of deceased
While we do not find this observation entirely dispositive either, it
nonetheless favor
unequivocally the case under clear aspects of the testamentary scheme that
child, as it was with regard to the distribution of Trust income, Decedent
or, in the
event that the child in question had died leaving issue, said issue would
per stirpes basis. Indeed, in
addition to the earlier-mentioned linguistic variations that might have been
employed to clarify that the last surviving child, rather than the last
surviving grandchild, would be the measuring life under the circumstances of
would have been yet another way to effectuate that result this, for the
incongruity
of two classes of beneficiary appearing to be entitled to the same share of
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the estate simultaneously. This aspect of the broader testamentary scheme,
and particularly the fact that the variations in question apply to aspects of
the Trust itself, suggests that Decedent intended to extend the life of the
Trust past the life of the survivor among any grandchildren living at the time
Decedent.
Because these observations, while suggestive, are not conclusive, we
must reach outside the text of the Trust and indeed the Will to seek further
vided in
Shultheis and Beisgen, supra, we may rely upon such considerations only
to the extent that they inform the ambiguous language in question, not in
We find two factors sufficient, in tandem with the above analysis, to
dispose of this case. As noted, supra
governed the 1928 Will, if a class of persons of whom some but not
then,
if it was reasonable to anticipate under the language of a trust the addition
of putative measuring lives who were not lives in being at the time of the
all members of that class. See
Weaver, 572 A.2d at 1253. However, in 1929, the rigor of that principle
only the members of the class as to whom the Trust was rendered invalid
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would be excluded from a share of the Trust, but those class members as to
whom the Trust remained legally enforceable would remain beneficiaries as
per the terms of the Trust. Id. This more lenient test would apply so long
voiding only the offending provisions as to the issues arising from the
presence of certain individuals in the problematic class or classes.
class to determine perpetuities, and indeed carefully specified that
distributions of principal be made piecemeal as such distributions were called
for by the death of various beneficiaries. In so doing, the trust in the 1928
Will recognized the per stirpes distribution of trust income and principal
across several specified classes, while ensuring that no member of any class
could run afoul of the then-applicable rule against perpetuities. Perhaps the
language was more cautious than necessary under the applicable rule, but it
appears to us that it was designed to hedge against the eventuality,
especially when viewed against the very different perpetuities language of
the revised Trust specified in the 1930 Will.
passed muster under the severability test, it pushed further toward class-
based distributions of interest and principal and, in extending its life twenty-
one years past a measuring life (without regard to which life is deemed the
measuring life), provided for a trust of longer duration t
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all principal would remain in the Trust until its termination, rather than
dissipating over time in various shares, maximizing the duration of the
distribution of income to the specified descendants, as well as its effect upon
& Bro., which comprised
These observations militate in favor of the conclusion that Decedent
intended that the Trust endure as long as was permissible under the law,
being, would have been twenty-one years after the death of that grandchild
or the last death among any o
just to his grandchildren, but to their issue as well, beneficiaries who were
remote for him to contemplate at the time.
Against these ind
long as the then-applicable law allowed, we must measure those
ces,
financial storm, but only unto the death of his last surviving child plus
twenty one years, not to the end of the succeeding generation, are
unconvincing. First, these considerations simply do not speak directly to the
ambiguity of the language itself, as Schultheis and Beisgen prescribe.
Moreover, they appear arbitrarily chosen among many competing intents
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that might have arisen in the turbulent financial circumstances that existed
in 1930. While we certainly acknowledge those conditions, and while
Decedent obviously would have drafted his 1930 Will in the gloomy light cast
by those circumstances upon his financial affairs, we have no tangible
evidence of what his responsive intent might have been beyond what we can
glean from the testamentary scheme as reflected in the language of the
1930 Will. Ultimately, we believe that the case for using the surviving child
of Decedent as the measuring life rests almost exclusively upon the o
approach unpersuasive.
Pennsylv
conform to his probable intention and be most agreeable to reason and
McKenna, 489 A.2d at 865 (quoting Umberger Estate, 87 A.2d
290, 293 (Pa. 1952)). Our conclusion necessarily is less certain than it
might be because the text of the residuary Trust established in the 1930 Will
is at best baroque and at worst byzantine. However, we believe that those
indicia that we do glean from the testamentary scheme evident on the face
of the 1930 Will and the above-cited extrinsic factors suggest that the most
probable intention, is that Decedent intended to perpetuate the Trust for as
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textual interpretation of plainly ambiguous language, there is no clear
reason to infer that Decedent intended the middle path extending the
Trust for a significant duration, but not a duration as long as the law
allowed especially in light of the fact that the changes made to the Trust
specifically to acknowledge his newly-born grandchild as a relevant life in
being for perpetuities purposes and his intent to avail himself of the
perpetuities law of the day to extend the life of the Trust past the life of his
children.
For the foregoing reasons, we conclude that Decedent intended that
the measuring life for the residuary Trust in his 1930 Will would be that of
the surviving grandchild among any grandchildren alive at the time of
in concluding otherwise.
Decree reversed. Case remanded. Jurisdiction relinquished.
Ford Elliott, P.J.E., Bowes, J., Allen, J., Ott, J., and Stabile, J. join the
opinion.
Shogan, J. files a dissenting opinion in which Bender, P.J.E and
Jenkins, J. join.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2014
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