*1028 1. A bequest of income to testatrix' husband for life and at his death to children of testatrix or their issue, held violative of the rule against perpetuities.
2. A bequest of income from one-third of testatrix' residuary estate to be paid to her daughter for life and at her death to her surviving children for their lives, held in violation of the rule against perpetuities.
3. A testamentary direction to pay to the testatrix' son one-third of trust income for life, with no disposition of principal, results in intestacy as to that portion of trust fund from which income was derived.
*1080 The Commissioner determined a deficiency of $1,430.02 in the estate tax of the petitioner.
The property held taxable by the Commissioner was the one-third interest of George M. Henderson in the residuary estate of Mary D. Henderson. The sole issue is whether or not the provisions of the will of Mary D. Henderson disposing of her residuary estate resulted in intestacy as such one-third interest.
FINDINGS OF FACT.
The facts were stipulated*1029 and, as so stipulated, are adopted as our findings of fact. They are substantially as follows:
The petitioner is a corporation, having its office and place of business in Philadelphia, Pennsylvania, and as such is the duly appointed and qualified executor of the estate of George M. Henderson, deceased. The petitioner, as executor of the estate of George M. Henderson, deceased, filed the Federal estate tax return for that estate with the collector of internal revenue for the first district of Pennsylvania.
George M. Henderson, a resident of Philadelphia, died on August 8, 1936. He was the surviving husband of Mary D. Henderson. Mary D. Henderson, a resident of Philadelphia, died on July 20, 1929, leaving a last will and testament, dated May 31, 1924, probated in the office of the Register of Wills of Philadelphia County, Pennsylvania, on July 30, 1929, and duly recorded therein. Letters testamentary thereon were duly granted on July 30, 1929, to George M. Henderson, her husband, and the United Security Life Insurance & Trust Co. of Pennsylvania.
*1081 George M. Henderson and the said United Security Life Insurance & Trust Co., executors under the will of May D. Henderson, *1030 deceased, duly filed their executors' account, which was audited in the Orphans' Court of Philadelphia County on June 5, 1930, and an adjudication thereon was filed by the judge of that court, wherein the principal of the residuary estate of the decedent was awarded to George M. Henderson and the said United Security Life Insurance & Trust Co., trustees under the will of Mary D. Henderson, deceased, upon the trusts therein declared.
The said United Security Life Insurance & Trust Co. was thereafter, on June 23, 1933, discharged as one of the trustees under the will of May D. Henderson, deceased, and the said Orphans' Court, by decree entered June 23, 1933, appointed the Girard Trust Co., substituted trustee under the will of Mary D. Henderson, deceased, in the place of the said United Security Life Insurance & Trust Co., the discharge of the United Security Life Insurance & Trust Co. being conditioned upon the absolute confirmation of its account in due course and the transfer and delivery of the assets of the estate in accordance with the adjudication thereof.
George M. Henderson and the said United Security Life Insurance & Trust Co. filed their trustees' account, which was*1031 duly audited by the said Orphans' Court on September 18, 1933, and an adjudication was filed thereon by the judge of that court on September 19, 1933, under which the principal of the trust estate was awarded to the said Girard Trust Co., substituted trustee, and George M. Henderson, continuing cotrustee, under the will of Mary D. Henderson, deceased, upon the trusts declared therein, which adjudication was thereafter confirmed absolutely.
Following the death on August 8, 1936, of George M. Henderson, the account of George M. Henderson and the Girard Trust Co., trustees under the will of Mary D. Henderson, deceased, as stated by the Girard Trust Co., substituted and surviving trustees, was filed in the said Orphans' Court, was called for audit on November 19, 1936, and an adjudication thereon was filed by the presiding judge thereof on December 18, 1936.
The will of Mary D. Henderson povided for certain specific bequests and her residual estate was disposed of as follows:
Fifth: All the rest, residue and remainder of my estate, of whatsoever nature or character, real, personal and mixed, or wherever situate, of which I may die possessed, or in which I may have any interest*1032 at the time of my death, I give, devise and bequeath unto the United Security Life Insurance and Trust Company of Pennsylvania, IN TRUST NEVERTHELESS for the following uses and purposes:
(a) My Trustees are to pay over one-third of the income received from the trust funds to my husband, George M. Henderson, for and during the term of *1082 his natural life, and at his death the income of this one-third share shall go to my children, or their issue, share and share alike, per stirpes and not per capita, - the principal becoming a part of my residuary estate.
(b) The income on a second one-third of my residuary estate shall gto to my daughter, (Mrs.) Helen Sedgwick McHenry, during the term of her natural life, and at her death the income of this trust fund shall be paid to her surviving children share and share alike for and during the term of their natural lives, with power to each of my daughter's said children to will and bequeath their share of the principal. In the event of any of them dying intestate, then their share shall go to their brothers or sisters them surviving share and share alike.
(c) The third one-third share of the income of this trust fund, I direct*1033 shall be paid to my son, Robert Randolph Henderson, for and during the term of his natural life. In case he dies unmarried or without issue, I direct that his share of the principal shall revert to my daughter, Helen Sedgwick McHenry.
Helen Sedgwick McHenry, daughter of Mary D. Henderson, as settlor, executed a deed of trust, dated June 8, 1934, whereby she assigned, transferred and set over unto the said Girard Trust Co., trustee, the share of the estate of May D. Henderson therein described, upon the terms, limitations and trusts therein set forth. George M. Henderson, as surviving husband of Mary D. Henderson, deceased, elected to take under her will and to accept the estates and interests therein devised and bequeathed unto him, which election was filed with the clerk of the said Orphans' Court on June 5, 1930.
Mary D. Henderson left surviving a husband, George M. Henderson, and two children, Robert R. Henderson and Helen Sedgwick McHenry. Robert R. Henderson was born on June 7, 1897. His wife, Ethel Scovel Henderson, whom he married on June 27, 1928, is living. He has two children, Mary Whitney Henderson, born September 1, 1931, and Ethel Margaret Henderson, born November 27, 1933. *1034 Helen Sedgwick McHenry was born on July 18, 1899. Her husband, Edward O. McHenry, is living. She has four children, Edward O. McHenry, Jr., born April 9, 1921; George Henderson McHenry, born May 2, 1924; Mary Louise McHenry, born June 25, 1925; and Jean McHenry, born September 12, 1927.
OPINION.
VAN FOSSAN: The sole issue, one purely of law, is whether or not Mary D. Henderson, wife of petitioner's decedent, George M. Henderson, died intestate as to her residuary estate by reason of the violation of the rule against perpetuities or other infirmities inherent in the terms of her will. The parties are in apparent agreement that is fo, under the law of Pennsylvania, the estate of George M. Henderson would be entitled to one-third thereof, since he and his two children were the only heirs at law of his wife. (Purdon's Pennsylvania Statutes Annotated, Title 20, ch. 1 § 2.)
*1083 Counsel for the respondent does not contend that the disposition by Mary D. Henderson of the income from the trust fund in the form of life estates therein was not valid. Hence it is unnecessary to discuss this point. However, he does argue that the entire principal, the income from which was*1035 bequeathed in the will, constituted her residuary estate and that she died intestate as to that estate.
Since the three subparagraphs (a), (b), and (c) of paragraph fifth of Mary D. Henderson's will were couched in varying language and made separate provisions as to three beneficiaries, it is necessary to consider the paragraphs separately.
The law of the Commonwealth of Pennsylvania governing the vesting of estates follows the general rule and limits the period for the commencement of executory devises to "a life or lives in being and twenty-one years, allowing for the period of gestation." ; .
"The rule against perpetuities is not one of construction, but of positive law, to be rigorously applied to true construction of wills, regardless of testator's intention." Headnote, ; . In that case the court stated:
The rule against perpetuities is a technical rule of law designed to measure the period during which the vesting of future interests may be postponed. It operates in frustration of the will or intent of the disposer*1036 of property. The rule should be applied boldly and without restraint in furthering the policy upon which it rests, but must be applied strictly according to its exact requirements. If the period testator has chosen may extend beyond the limits fixed by the rule, his provisions are void; but, if that period may not, under any circumstances, by the occurrence of events, extend beyond those limits, testator's bequests are valid.
Subparagraph (a) of paragraph fifth of the will reads as follows:
(a) My Trustees are to pay over one-third of the income received from the trust funds to my husband, George M. Henderson, for and during the term of his natural life, and at his death the income of this one-third share shall go to my children, or their issue, share and share alike, per stirpes and not per capita, - the principal becoming a part of my residuary estate.
It is clear that this paragraph violated the rule against perpetuities. Under the above provisions the one-third interest in the trust funds may not ultimately vest within the limited period because the grandchildren of Mary D. Henderson who would take under the will may not be born until long after the death of the grandmother. *1037 In this situation it must be held that as to this interest the testatrix died intestate and the residuary estate passed to the heirs at law.
Subparagraph (b) reads as follows:
(b) The income on a second one-third of my residuary estate shall go to my daughter, (Mrs.) Helen Sedgwick McHenry, during the term of her natural life, and at her death the income of this trust fund shall be paid to her surviving children share and share alike for and during the term of their natural lives, with power to each of my daughter's said children to will and bequeath *1084 their share of the principal. In the event of any of them dying intestate, then their share shall go to their brothers or sisters them surviving share and share alike.
The provision of this paragraph likewise is violative of the rule against perpetuities since it is possible the "surviving children" of the daughter may be born long after the death of the testatrix. The same consequence follows.
Subparagraph (c) is as follows:
(c) The third one-third share of the income of this trust fund, I direct shall be paid to my son, Robert Randolph Henderson, for and during the term of his natural life. In case he dies*1038 unmarried or without issue, I direct that his share of the principal shall revert to my daughter, Helen Sedgwick McHenry.
This paragraph bequeaths a life estate to the son with no further provision as to the income. This bequest is valid and does not violate the rule against perpetuities.
The respondent contends, however, that while the will directs that in case the son dies unmarried or without issue his share of the principal shall pass to his sister, it makes no disposition in any other contingency and nowhere bequeaths to him any share. The respondent contends further that it would be impossible to determine what "his share of the principal" would be. We agree that the will is properly to be so criticized. The testatrix failed to dispose of any share that she might have thought or intended to give to her son or to his heirs or descendants. She made no clear devise of the corpus. Any attempted disposition failed for lack of definiteness. To read the paragraph as a devise of the corpus to the son would be to rewrite the will. Therefore, she died intestate as to that portion of the estate from which her son derived his income for life. *1039 ; .
Thus it is, consequent on the above, that petitioner's decedent takes not under the will, but by operation of law as provided in cases of intestacy.
The petitioner admits that the will was "inexpertly drawn" and as to paragraph (b), supra, violated the rule against perpetuities, but argues that the intention of the testatrix was apparent from the instrument itself and must control its construction, asserting that it was her dominant purpose to provide life interests for her husband and children. Had she been duly advised, it is claimed, she would have made disposition of the remainder with proper and legal limitations.
The simple fact is that with the exceptions above noted, testatrix' will was so ineptly drawn as to be of no effect in law in passing title. The above quoted observations of the court in , are pertinent. See also ;; *1040 .
Decision will be entered under Rule 50.