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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 Entered August 14, 2012,
              In the Court of Common Pleas of Delaware County,
                                            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.

DISSENTING OPINION BY SHOGAN, J.:              FILED SEPTEMBER 18, 2014

      I respectfully dissent.     While the Majority correctly sets forth the

applicable legal authority regarding perpetuities and trust interpretation, I

cannot agree that there was any ambiguity or that language naming

secondary beneficiaries of the trust was triggered. Thus, because I conclude

                                                 nfounded presumptions, not

supported by the language at issue, I am compelled to write separately.



states as follows:

             ARTICLE FOURTH:       I give, devise and bequeath all the
      rest, residue and remainder of my estate, and I also give, devise
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     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.

                                   ***

     And IN TRUST, upon the expiration of the period of twenty-one
     years after the death of the last survivor of the children [1]
     and issue of deceased children of mine living at my death, to pay
     over to my descendants, per stirpes, a proportion and division of

1

his death.   Article Fourth ¶ 3.   Nowhere does the 1930 Will provide for




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      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.[2]

      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.

The 1930 Will at 2-7 (emphasis added).



the last surviving child of Decedent who was alive at the time of his death.



                                       because Decedent had no deceased

children at the time of his death. The clear terms of the 1930 Will dictate




2
    Indeed, as the Majority points out, the perpetuities language differs
slightly from the income distribution language. Majority Opinion at 21. The

life of each of such children or issue of a deceased child living at the time of

period of twenty-one years after the death of the last survivor of the children

variation is of no moment because, as will be discussed below, none of
                             eased at the time of his death, and therefore,
the triggering language never became operative. Regardless, such slight
variation is unsurprising given the multiple potential income beneficiaries
versus the necessity of designating a sole measuring life, i.e.




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would terminate twenty-one years after the death of the last surviving child.

Only in the event that a child of Decedent predeceased Decedent would the

alternative beneficiary language be necessary.

      The Majority interprets the 1930 Will as being ambiguous and

concludes the 1930 Will provides that the measuring life for the trust was



death.      Majority Opinion at 26-



of his children must have been deceased in order for that interpretation to

be valid.      Because all four of his children were alive at the time of



made operative. There is no mention of grandchildren as a measuring life if




matter wherein it concluded that the measuring life for purposes of the trust

was that of the last surviving child of Decedent, E

Court Opinion, 8/14/12, at 21-22.     Ms. Staempfli was alive at the time of



died on February 21, 1991. Therefore, I conclude that the trust terminated

on February 21, 2012, twenty-one years after the death of Ms. Staempfli.

      Accordingly, I respectfully dissent.




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     BENDER, P.J.E. and JENKINS, J. join this Dissenting Opinion.




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