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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.

____________________________________________


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:
____________________________________________


2
       Appellees, including beneficiaries other than those among Appellants,

                                        en banc session, but they did not present
oral argument in this matter.



                                           -2-
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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.



                                     -3-
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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 . . .
____________________________________________


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.



                                           -4-
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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.

                                  ****



                                    -5-
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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)


                                             -6-
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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.



                                            -7-
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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
____________________________________________


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




                                           -8-
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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)).


                                        -9-
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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



                                    - 10 -
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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 . . . .


                                     - 12 -
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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

____________________________________________


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.



                                          - 13 -
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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,
____________________________________________


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.




                                          - 14 -
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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

                                      - 15 -
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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


                                     - 16 -
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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




                                    - 17 -
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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

                                        - 18 -
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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




____________________________________________


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).



                                          - 19 -
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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




                                    - 20 -
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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

                                    - 21 -
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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

                                    - 22 -
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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




                                         - 23 -
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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

                                   - 25 -
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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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J-E02006-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2014




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