In re Newlin's Estate

• Decision Date: 21 May 1951
• Parties: In re NEWLIN'S ESTATE. Appeal of NEWLIN.
• Court: Pennsylvania Supreme Court

80 A.2d 819

367 Pa. 527

In re NEWLIN'S ESTATE. Appeal of NEWLIN.

Supreme Court of Pennsylvania.

May 21, 1951

Proceeding in the matter of the estate of William E. Newlin deceased, wherein a construction of the will of deceased was sought. The Orphans Court of Allegheny County at No. 5310 of 1949, Timothy F. Ryan, Jr., entered a decree holding that bequest was contingent and violated the rule against perpetuities, and Joseph B. Newlin appealed. The Supreme Court, Bell, J., at No. 51 March Term, 1951, held that bequest was vested and that it did not violate the rule against perpetuities.

Judgment reversed.

A. M. Simon, Pittsburgh, for appellant.

Samuel Milliken, McKeesport, for appellee.

Before DREW, C. J., and STERN, JONES, BELL, LADNER and CHIDSEY, JJ.,

BELL Justice.

Was the testator's bequest of the corpus of a trust fund of $6000 (after a life estate to his son) to his son's issue who are living at the time of the son's death, to be divided among said issue (income in the meantime to be paid to the son's widow) at the time said issue arrive at the age of 30 years, contingent or vested subject to be divested? If the gift was contingent then, as a majority of the court below held, the bequest violated the rule against perpetuities; if it was vested subject to be divested it was a valid gift and the testator's 30 year old grandson, who is the appellant, is entitled to the fund.

The rule against perpetuities was well and clearly established, ^[1] its application has often been difficult and perplexing. Before discussing the rule against perpetuities and its applicability to this will, it seems wise to search Newlin's will to discover, if possible, the testator's intent, because that of course is the pole star. In re Mulert's Estate, 360 Pa. 356, 61 A.2d 841; In re Sarver's Estate, 324 Pa. 349, 188 A. 141; Prime's Petition, 335 Pa. 218, 6 A.2d 530; In re Byrne's Estate, 320 Pa. 513, 181 A. 500.

The testator's intent must be ascertained by a consideration of the entire will which of course must be read in the light of the circumstances surrounding him when he made it. In re Packer's Estate (No. 1), 246 Pa. 97, 92 A. 65; In re Hermann's Estate, 220 Pa. 52, 58, 69 A. 285; In re Mulert's Estate, 360 Pa. 356, 61 A.2d 841; In re March's Estate, 357 Pa. 216, 53 A.2d 606. The attendant circumstances include the condition of his family, the natural objects of his bounty and the amount and character of his property. In re Fahey's Estate, 360 Pa. 497, 500, 61 A.2d 880; In re Mayer's Estate, 289 Pa. 407, 137 A. 627; In re Frisbie's Estate, 266 Pa. 574, 109 A. 663.

Testator, a lawyer, died December 23, 1922, having made a last will which was dated August 24, 1920 . He left an estate of approximately $44,000. He was survived by a widow, who is still living, a son, who died September 15, 1934, and a grandson, the present appellant, who was born December 1, 1919 -9 months before testator's will and 3 years prior to his death. Testator directed his executors to convert all his estate into money when they felt it was for the best interest of his estate, and when the whole of his residuary estate had been converted into money, he gave a full equal one-half share to his wife; $6000 in trust; a $1500 legacy to his niece, Carolyn Newlin; and the remainder of his residuary estate to Jessie Pearce Eckler, her heirs and assigns forever.

The provision with respect to the aforesaid fund of $6000 is as follows: ‘ 2nd * * * b. I give, devise and bequeath unto my Executor, hereinafter named, or its successor, the sum of Six thousand ($6,000.00) Dollars in [a spendthrift] trust, to * * * pay over the interest or dividends received therefrom, * * * when and as the same may be gotten in, to my son, John Harrison Newlin, for * * * his natural life. * * * In case my son should leave a widow and issue ^[2] at the time of his death then the said interest or dividends of said trust fund are to be paid to said widow until said issue ^[2] arrive at the age of thirty (30) years at which time the corpus of said fund shall be divided among them ^[3] share and share alike. In case my son should die without leaving issue ^[2] living at the time of his death, and said issue ^[2] of my son should leave no issue, or if my son leaves issue living at the time of his death, if such issue ^[2] should die before arriving at the age of thirty (30) years without leaving issue, then said trust fund is to be held in trust^[4] by my Executor * * * and the interest or dividends, when and as received, paid over to my Brother, T. F. Newlin and on his death, if his wife Melinda Newlin survives him, to her, my Sisters, Celia N. Stephens and Lizzie V. Roberts, or to survivors of them, share and share alike. Upon the death of my said Brother, his wife, Melinda Newlin, and my said Sisters the corpus of said fund shall be divided equally between my niece Carolyn Newlin, and my nephew, Harold V. Newlin, their heirs and assigns.’

Testator's widow received a one-half share of his estate. It will be noted that his son was bequeated only the income from the $6000 trust fund and unless this appeal is sustained, testator's grandson will receive no part or share of his grandfather's estate . The court below held that the bequest of the remainder was to the son's surviving issue if and when they arrived at the age of thirty (30) years (which by possibilities was a period longer than a life in being and 21 years thereafter) and was therefore contingent and violated the rule against perpetuities.

What is the rule against perpetuities?‘ 1. Perpetuities are grants of property, wherein the vesting of an estate or interest in unlawfully postponed: Saunders on Uses and Trusts 196; 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, * * *’ . City of Philadelphia v. Girard's Heirs, 45 Pa. 9, 26, 27.

‘ * * * the rule against perpetuities prohibiting the creation of future interests or estates which by possibility ^[5] may not become vested within a life or lives in being at the death of the testator and twenty-one years thereafter, together with the period of gestation? See 21 R.C.L. 282; Hillyard v. Miller, 10 Pa. 326, 334; City of Phila[delphia] v. Girard's Heirs, 45 Pa. 9, 26; Yard's Appeal, 64 Pa. 95, 98; Coggins' Appeal, 124 Pa. 10, 16 A. 579; Rhodes' Estate, 147 Pa. 227, 23 A. 553; Barton v. Thaw, 246 Pa. 348, 92 A. 312; [In re] Lilley's Estate, 272 Pa. 143, 151,166 A. 392,28 A.L.R. 366; A. 284; Gray, Rule against Perpetuities A. 284; Gray, Rule against Perpetuieies (3d Ed.) § 214; Foulke, Perpetuities, etc., in Pennsylvania, § 329. * * * The rule is not one of construction, but a positive mandate of law to be obeyed irrespective of the question of intention. * * * Where the gift is to a class, the class must be such that all the members of it must necessarily be ascertained and take absolutely vested interests within the period . If the gift is to a class and it is void as to any one of the class, it is void as to all.21 R.C.L. 303, 308; Coggins' Appeal, supra; [In re] Wickersham's Estate (No. 1), 261 Pa. 121, 127, 104 A. 509; Gray, Rule against Perpetuities (3d Ed.) § § 373 et seq.; Foulke, Perpetuities, etc., in Pennsylvania, § 445.’ In re Lockhart's Estate, 306 Pa. 394, 400-401, 159 A. 874, 876.

If a bequest is to a class who take at the death of a life tenant, the fact that the members of the class are unknown or even not in being at the death of the testator, or that their interest is subject to be increased or decreased or divested by subsequent events, will not render the gift contingent or violate the rule against perpetuities. In re Edwards' Estate, 255 Pa. 358, 99 A. 1010; Id., 360 Pa. 504, 62 A.2d 763; Overbrook Heights Building & Loan Ass'n v. Wilson, 333 Pa. 449, 5 A.2d 529; In re Reed's Estate, 307 Pa. 482, 161 A. 729; In re McCauley's Estate, 257 Pa. 377, 101 A. 827; In re Lloyd's Estate, 326 Pa. 230, 192 A. 98.

‘ Where an estate is given to a life tenant, with remainder to the children of the life tenant, the estate vests at once upon the birth of each child, subject to open and let in after-born children * * * without regard to the question of whether or not a child survives the life tenant’ . In re Edwards' Estate, 255 Pa. 358, 361, 99 A. 1010, 1011; In re Edwards' Estate, 360 Pa. 504, 508, 62 A.2d 763.

‘ The interest of the defendant, the issue in being of the class of which he is a member, may be decreased or enlarged by future issue or by the death of some of the living issue in the same class, but this does not make his estate a contingent one’ . Overbrook Heights Building & Loan Ass'n v. Wilson, 333 Pa. 449, 454, 5 A.2d 529, 530.

‘ Where a bequest is to a class, the vesting is not postponed because of uncertainty as to who, if any, may be the constituents of the class at the time fixed for the enjoyment of it. If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate’ . In re McCauley's Estate, 257 Pa. 377, 382, 101 A. 827, 829; In re Reed's Estate, 307 Pa. 482, 484, 161 A. 729.

An estate which is vested and payable to a grandson at 25, but is divested if the grandson die before attaining 25 years of age, does not violate the rule against perpetuities. In re Bilyeu's Estate, 346 Pa. 134, 137, 29 A.2d 516; In re Allen's Estate, 347 Pa. 364, 366, 32 A.2d 301.

Before applying these well settled principles, ‘ The proper procedure is to determine the true construction of the will, just as if there was no such thing in existence as the rule [against...