Rule Against Perpetuity and Measuring Lives

The Superior Court, sitting en banc, has reversed the Orphans’ Court of Delaware county in deciding which was the measuring life for purposes of the rule against perpetuities as applied to a 1931 trust under the will of George McFadden.  Finding that the language of the trust was ambiguous, the Superior Court, in a 6-3 decision, decided that the intent of the testator was to perpetuate the trust for as long as then-current law provided.  (The law had changed in 1929.)  The language in question is:

“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.”

Both the Orphans’ Court and the Superior Court found the language to be ambiguous.  The Orphans’ Court concluded that a grandchild could only be a measuring life if the grandchild’s parent (a child of the testator) had predeceased the testator.  All of the testator’s children were alive at his death (although he had two living grandchildren), so the measuring life was the last to die of the testator’s children.  The Superior Court came to the opposite conclusion, meaning the last to die of the grandchildren was the measuring life.  Estate of George McFadden, 2014 PA Super 203 (Super. 2014) (Opinion by Wecht, J., joined by Ford Elliott, P.J.E., Bowes, J., Allen, J., Ott, J., and Stabile, J).

The dissent in the case found the language to be unambiguous, because only issue of deceased children could be measuring lives, and all children survived the testator.  Estate of George McFadden, 2014 PA Super 203 (Super. 2014) (Dissent by Shogan, J., joined by Bender, P.J.E. and Jenkins, J.)

The original three-judge panel of the Superior Court had issued an opinion on December 31, 2013, affirming the Orphans’ Court (the opinion of the Orphans’ Court is attached to the opinion of the Superior Court).  Estate of George McFadden, No. 2872 EDA 2012 (Pa. Super. 2013) (Opinion by Shogan, J., joined by Colville, J.; Wecht dissenting).


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