McCreary's Estate

Van Dusen, P. J., and Ladner, J.,

dissenting.

We are unable to agree with the disposition made by a majority of the court of the exceptions in this case.

The facts need not be repeated, as they are concisely but fully stated in the majority opinion.

The rule that a valid life estate created in a trust should be upheld even though the remainder may be void as in conflict with the rule against perpetuities, and its necessary corollary that the court will not ordinarily pass upon the remoteness of the remainder until the valid life estate falls in, is too firmly implanted in the Pennsylvania law to be questioned. However, an examination of the authorities indicates that the reason for the rule is the desire of the courts to carry out testator’s intent as far as practicable, and this is always done unless the valid estates and the invalid are so intricately interwoven as to be incapable of separation, or unless the dominant intent of testator appears to be a desire to have his testamentary scheme upheld as a whole: Johnston’s Estate, supra; Lilley’s Estate, 272 Pa. 143; Feeney’s Estate, supra.

Where there is a clearly expressed intent gathered from the will that the creator of the trust desires the whole plan of distribution to be upheld, or not at all, the reason for the rule disappears; to then proceed to uphold even an admittedly valid life estate in the face of such expressed intention of testator is to adhere to the mere form when the foundation of the rule is gone.

An examination of the cases cited in the majority opinion and those cited in brief of counsel against the exceptions shows that in none of them has the creator of the trust by express language indicated, as here, that an alternative disposition should take effect unless the whole trust could be upheld. Is there such an intent clearly expressed in the will before us? We think so. It seems to *100us that the last paragraph of item 19 of the will by which the appointment was exercised indicates just such an intent. This item we quote in full, in order that its context may be used to aid the construction to be placed upon the final paragraph:

“Item 19. Whereas by a deed dated the 13th day of April, 1880,1 granted and conveyed the property therein described unto George D. McCreary and the Fidelity Insurance Trust and Safe Deposit Company of Philadelphia, in trust for the uses and purposes therein set forth and especially in trust, after my death to convey and assign said trust estate and property to such person or persons, in such proportions, for such estates and for such uses and purposes as I might by my Will appoint, and whereas I desire, so far as the law permits, to make the same disposition thereof as I have hereinbefore made of my residuary individual property.

“Now, Therefore, in execution of the power so reserved to me in said deed, or of any other power which I may possess in the premises, I do hereby Will, direct, name, limit and appoint that the estate and property held in trust under said deed at the time of my death shall be conveyed, assigned, transferred, paid over and delivered unto said Tilghman G. Pitts and Safe Deposit and Trust Company of Baltimore, Trustees, and the survivor of them, and the successors of them, the same to be added to and for the purposes of this my Will considered as though it constituted part of the rest, residue and remainder of my own personal estate,, and I do hereby give, devise and bequeath the same unto the said Tilghman G. Pitts and Safe Deposit and Trust Company of Baltimore, Trustees, to be held by them in trust for the same uses and purposes in all respects with the same limitations over and with and subject to the same powers as I have hereinbefore set forth and expressed in respect to the two trusts hereby created of my own residuary estate.

“Should, however, it be held by a Court of competent jurisdiction and of last resort in a proceeding in which *101the question of the validity of the trust created by this clause of my Will shall be of an issue, that said Trust is void for violating the rule against perpetuities then it is my Will and I direct that my Trustees or the survivor of them shall hold this portion of my estate in trust, to pay over and deliver the same to and among such person or persons as may at the time this trust shall be decided void as aforesaid, be entitled to receive the net income thereof, and in the same proportions, absolutely and free from further trusts.” (Italics supplied.)

The words italicized in the last paragraph of this item, namely, “this portion of my estate”, to us mean that part of her estate as to which she had reserved the power to appoint in her deed of trust. We cannot accept the suggestion of the majority opinion that the word “portion” in the last paragraph of item 19 refers to the part of the appointive estate which might be decreed void. Such interpretation is at variance with the preceding paragraphs of this item which make plain her intention to include in the trust created by the prior items of the will that part of her estate of which she was the donee under the deed of 1880.

Testatrix sensed that, while the trusts set up in the will might be good as to the nonappointive part of her estate, they nevertheless might prove too remote as to the appointive portion of her estate, because the period of remoteness as to that would have to be measured from the date of the deed, 1880, when the only life in being was her own. She expressly directed, therefore, that, if the trust should be invalid as violating the rule against perpetuities, the same was to be delivered to the persons entitled to receive the net income thereof, absolutely “free from further trusts”. The trusts then stricken down cannot be the void limitations, for they are gone already. The trusts mentioned must be those which otherwise would hamper the life tenants. Does not testatrix by these words make it clear that if she cannot have the plan of disposition carried out the way she made it, she prefers to abandon it as *102a whole and prefers that her daughters inherit their respective shares, absolutely. It is not really a case of merger, but an unrestricted gift in fee “absolutely and free from further trusts”.

So interpreted, the will is free from the possible complications pointed out by counsel for exceptants, which would follow if the decision upon the validity of the trust were postponed until the life estate fell in. Whenever one of the daughters dies an adjudication striking down the remainders would leave the surviving daughter as the “person ... at the time this trust shall be decided void as aforesaid . . . entitled to receive the net income thereof”. In other words, the children of the daughter first dying would be disinherited. Notwithstanding the fact that testatrix certainly never intended such a result, nevertheless, if the decision as to the validity of the remainders is postponed to the death of one daughter, such disposition becomes inevitable.

Proceeding now to a consideration of the validity of the limitations created by the will, it must be remembered that the lives within which the estates are to vest must have been “in being” in the year 1880 when the trust was created: Cox et al. v. Dickson, supra. The only life then in being was that of settlor herself; while the life estates to her daughters are good because they vest at her death, the gifts of income and principal to-the daughters’ children will vest only at the daughters’ deaths, because it cannot be determined until then how many children they will have. It is urged that the vesting takes place at the death of the grandchildren born in settlor’s lifetime, but those are lives that cannot be considered, for they were not in existence in 1880.

It is true also that a gift to the grandchildren who were born in Mrs. Paine’s lifetime would be good if it vested at Mrs. Paine’s death, but the gift is not to them alone. Their interests may be diminished by the birth of other brothers and sisters, and it is possible also, though perhaps not clear, that their interests are contingent upon surviving *103their mothers. Under any construction the interests of these grandchildren will not he determined and therefore cannot vest until their respective mothers’ deaths, and that is too remote a period. “And if the gift is to a class, and it is void as to any of the class, it is void as to all”: Coggins’ Appeal, 124 Pa. 10, 30; Lockhart’s Estate, 306 Pa. 394. See also a case in which the facts greatly resemble those before the court, Lammot v. Home of the Merciful Saviour, 68 Pa. Superior Ct. 597.

We would sustain the exceptions.