The opinion
Opinion by
Mr. Justice Allen M. Stearne,
These are two appeals from a decree of an orphans’ court refusing to terminate a trust.
Testatrix devised and bequeathed her residuary estate to a trustee to pay, inter alia, the net income to
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three named grandchildren
until the youngest attains the age of thirty years.
The will also provides:
. .
In the event of the death of any of my three grandchildren herein mentioned before the trust terminates and without leaving issue surviving, the surviving grandchild or grandchildren shall inherit that portion of the trust estate of the deceased grandchild or grandchildren.”
One of the grandchildren died without issue, leaving-two brothers surviving, who are the appellants. One of the surviving grandchildren is presently unmarried and without issue. The other is married and has two children who are represented by a guardian
ad litem.
The interest of unborn or unascertained persons are represented by a trustee
ad litem.
The younger of the two surviving grandchildren has not yet attained the age of thirty years. Appellants petitioned the orphans’ court for the termination of the trust, contending that they are the sole parties in interest. The court refused the petition. These appeals followed.
A trust to pay income to a beneficiary until he reaches a designated age beyond 21 years, and then to pay him the corpus, is a void trust. Such attempted limitation is void because of the violation of the rule of public policy forbidding restraint in the use or disposition of property in which no one but the beneficiary has an interest:
Shallcross’s Estate,
200 Pa. 122 , 49 A. 936 ;
Decker Estate,
353 Pa. 509 , 46 A. 2d 218 . Where, however,
there is a gift over
in the event that the beneficiary for life or years does not attain a designated age, the element of time does not relate to the
payment
of the gift, but is a
contingeney that is annexed to the gift itself.
Such a trust is valid and will be enforced:
Brown’s Estate,
289 Pa. 101, 114 , 137 A. 132 ;
Allen Estate,
347 Pa. 364, 367 , 32 A. 2d 301 .
Under the terms of the present trust, if a grandchild dies
loithout
leaving issue before the youngest grandchild attains thirty years of age, such share is payable
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to the survivor or survivors. While there are no
express
words passing the share to the issue of a deceased grandson dying
with
issue before the youngest grandchild attains thirty years of age, nevertheless, such issue take under an
implied
gift:
Cope Estate,
353 Pa. 306 , 45 A. 2d 52 . It is clear that issue of a grandchild, either born or to be born before the youngest grandchild attains thirty years of age, possess a contingent interest in the trust res. It therefore follows that all persons who are presently or may be hereafter interested cannot
now
be ascertained and joined. Petitioners are not the
only
persons interested in the trust. As contingent interests presently exist or may hereafter come into being before the date fixed for distribution, the trust may not now be terminated by agreement of but two of the interested persons:
Donnan’s Trust Estate,
339 Pa. 43 , 13 A. 2d
55; Rickenbach Estate,
348 Pa. 121 , 34 A. 2d 527 ;
Kamerly Estate,
348 Pa. 225 , 35 A. 2d 258 .
The cases relied upon by appellants are inapposite. In both
Martin et al. v. Grinage,
289 Pa. 473 , 137 A. 676 , and
Bishop et al. v. Bishop,
343 Pa. 196 , 22 A. 2d 901 , the initial devise was of a
fee simple estate
where no gift to issue may be
implied.
The decree of the court below is affirmed at the cost of appellants.