Opinion by
Mr. Justice Benjamin R. Jones,
[234] The issue on this appeal is whether income, unlawfully accumulated under the Act of 1853 (Act),1 is distributable to the residuary legatees under the instant will (grandchildren et al.) or to testator’s next-of-kin under the intestate laws (testator’s three children and the personal representatives of his two deceased children).
Lewis M. Castner (testator) died January 1, 1932, survived by his wife and five children. Under his will, he gave the “rest, residue and remainder” of his estate to the First National Bank of Williamsport (trustee) in trust for the following purposes: (1) to distribute from the “net income” of the “residuary estate” certain specific sums of money, annually, to his wife, three of his children and his sister during their lives; (2) on the wife’s death or remarriage, her share of the income was to be proportionately divided among the other three named life beneficiaries, excluding his sister; (3) on the death of “any other” beneficiary, the share of the income of such beneficiary was to go to his or her issue, and, in default of such issue, to the testator’s remaining children in proportion to the specific amounts of income given such children under the trust; (4) if the residuary estate should yield “more income than necessary to pay the amounts allowed [his] beneficiaries under [the] trust,” the “excess” was to be reinvested and “held to make up any prior or subsequent shortage in such payments, and if not required for that purpose shall be distributed at the termination of the trust in the same manner as the corpus of the trust funds”; (5) the trust was to continue “during the lives of [testator’s] wife and [his] children above named, and thereafter until [his] youngest grandchild living at the time of [his] death, arrives at the age of twenty-one (21) years”; (6) upon [235] the termination of the trust, the trustee was to distribute the “whole of [his] residuary estate, including undistributed income thereof, among all [his] grandchildren, in equal shares, the share of any deceased grandchild to be paid to his or her issue, if any, otherwise to lapse.”
On October 28, 1960, the trustee filed its first and partial account in the Orphans’ Court of Lycoming County and requested a determination of the question of the distribution of the balance of accumulated income in its hands, then amounting to $59,677.27. The matter was referred to an auditor. Being of the opinion that the residuary legatees had “an immediate right of possession of the remainder interest if the prior estates were presently terminated”, that the “unlawful accumulations represented] a part of the estate that is no longer affected by the life estates” and that, as to the accumulated income, the trust had terminated, the auditor concluded that the balance of the accumulated income should be distributed to the residuary legatees.
The Orphans’ Court of Lycoming County held that the residuary legatees did not have such a vested interest as took effect in immediate possession, that, as to the accumulated income, the testator died intestate and that the testator’s next of kin2 under the intestate laws were entitled to distribution of the accumulated income. From that decree this appeal was taken.
All parties agree that the accumulation of income under the provisions of this will violates Section 9 of the Act and our sole inquiry is to whom such illegally accumulated income should now be distributed. Section 9 provides that income unlawfully accumulated “shall go to and be received by such person or per[236] sons as would have been entitled thereto if such accumulation had not been directed. . . .” “The inquiry, therefore, must, in the first instance, always be, who, under the provisions of the will, as fairly interpreted, such persons are:” Martin’s Estate, 185 Pa. 51, 53, 39 Atl. 841.
The residuary legatees contend that, since by the provisions of the will the life beneficiaries are restricted and limited to the specific amounts of the net income which they were bequeathed, as to any surplus income, i.e., income accumulated over the years, only the residuary legatees, whose interest in the accumulated income becomes accelerated as to time of taking, are entitled to a distribution.3 The next of kin contend that neither the life beneficiaries nor the residuary legatees can take, the latter because they lack an immediate interest in possession and the illegal provisions as to accumulations are part of the residuary clause of the will and, therefore, as to the accumulated income, an intestacy occurred.4
In this area of the law, White’s Estate, 8 Dist. 33, written by the very able Judge Penkose, has become recognized as a landmark case.5 In White’s Es[237] tate, the following rule was enunciated: “Accumulation is forbidden by the act no less where it results by indirection than where it is expressly ordered; the striking down of the illegal accumulation leaves the will as if it had been silent on the subject, and future gifts are not accelerated; if the accumulation relates to a vested interest taking effect in possession, the released income goes at once to the beneficiary [of that interest but] if [the accumulation relates] to an interest not vested in possession, the income goes to the residuary legatee or devisee, unless the residuary estate itself be the subject of the provision, in which case the income goes under the intestate laws to the next of kin or heirs.” This rule has been generally accepted as a reliable guide in determining the appropriate disposition of accumulated income which, by reason of a violation of the Act, has become released or liberated income.
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Opinion by
Mr. Justice Benjamin R. Jones,
[234] The issue on this appeal is whether income, unlawfully accumulated under the Act of 1853 (Act),1 is distributable to the residuary legatees under the instant will (grandchildren et al.) or to testator’s next-of-kin under the intestate laws (testator’s three children and the personal representatives of his two deceased children).
Lewis M. Castner (testator) died January 1, 1932, survived by his wife and five children. Under his will, he gave the “rest, residue and remainder” of his estate to the First National Bank of Williamsport (trustee) in trust for the following purposes: (1) to distribute from the “net income” of the “residuary estate” certain specific sums of money, annually, to his wife, three of his children and his sister during their lives; (2) on the wife’s death or remarriage, her share of the income was to be proportionately divided among the other three named life beneficiaries, excluding his sister; (3) on the death of “any other” beneficiary, the share of the income of such beneficiary was to go to his or her issue, and, in default of such issue, to the testator’s remaining children in proportion to the specific amounts of income given such children under the trust; (4) if the residuary estate should yield “more income than necessary to pay the amounts allowed [his] beneficiaries under [the] trust,” the “excess” was to be reinvested and “held to make up any prior or subsequent shortage in such payments, and if not required for that purpose shall be distributed at the termination of the trust in the same manner as the corpus of the trust funds”; (5) the trust was to continue “during the lives of [testator’s] wife and [his] children above named, and thereafter until [his] youngest grandchild living at the time of [his] death, arrives at the age of twenty-one (21) years”; (6) upon [235] the termination of the trust, the trustee was to distribute the “whole of [his] residuary estate, including undistributed income thereof, among all [his] grandchildren, in equal shares, the share of any deceased grandchild to be paid to his or her issue, if any, otherwise to lapse.”
On October 28, 1960, the trustee filed its first and partial account in the Orphans’ Court of Lycoming County and requested a determination of the question of the distribution of the balance of accumulated income in its hands, then amounting to $59,677.27. The matter was referred to an auditor. Being of the opinion that the residuary legatees had “an immediate right of possession of the remainder interest if the prior estates were presently terminated”, that the “unlawful accumulations represented] a part of the estate that is no longer affected by the life estates” and that, as to the accumulated income, the trust had terminated, the auditor concluded that the balance of the accumulated income should be distributed to the residuary legatees.
The Orphans’ Court of Lycoming County held that the residuary legatees did not have such a vested interest as took effect in immediate possession, that, as to the accumulated income, the testator died intestate and that the testator’s next of kin2 under the intestate laws were entitled to distribution of the accumulated income. From that decree this appeal was taken.
All parties agree that the accumulation of income under the provisions of this will violates Section 9 of the Act and our sole inquiry is to whom such illegally accumulated income should now be distributed. Section 9 provides that income unlawfully accumulated “shall go to and be received by such person or per[236] sons as would have been entitled thereto if such accumulation had not been directed. . . .” “The inquiry, therefore, must, in the first instance, always be, who, under the provisions of the will, as fairly interpreted, such persons are:” Martin’s Estate, 185 Pa. 51, 53, 39 Atl. 841.
The residuary legatees contend that, since by the provisions of the will the life beneficiaries are restricted and limited to the specific amounts of the net income which they were bequeathed, as to any surplus income, i.e., income accumulated over the years, only the residuary legatees, whose interest in the accumulated income becomes accelerated as to time of taking, are entitled to a distribution.3 The next of kin contend that neither the life beneficiaries nor the residuary legatees can take, the latter because they lack an immediate interest in possession and the illegal provisions as to accumulations are part of the residuary clause of the will and, therefore, as to the accumulated income, an intestacy occurred.4
In this area of the law, White’s Estate, 8 Dist. 33, written by the very able Judge Penkose, has become recognized as a landmark case.5 In White’s Es[237] tate, the following rule was enunciated: “Accumulation is forbidden by the act no less where it results by indirection than where it is expressly ordered; the striking down of the illegal accumulation leaves the will as if it had been silent on the subject, and future gifts are not accelerated; if the accumulation relates to a vested interest taking effect in possession, the released income goes at once to the beneficiary [of that interest but] if [the accumulation relates] to an interest not vested in possession, the income goes to the residuary legatee or devisee, unless the residuary estate itself be the subject of the provision, in which case the income goes under the intestate laws to the next of kin or heirs.” This rule has been generally accepted as a reliable guide in determining the appropriate disposition of accumulated income which, by reason of a violation of the Act, has become released or liberated income.
Maris’s Estate, 301 Pa. 20, 151 Atl. 577 is an example of a situation falling within the first part of this rule. In Maris’s Estate the widow by the terms of the will was given during her life the “net income” absolutely; she thereby became entitled to all the income arising from the corpus of the trust and became vested with an equitable life interest in the income-producing corpus which, upon the death of the testator, took effect in immediate possession; under such circumstances, the widow became entitled to distribution of any income unlawfully accumulated. By way of contrast, the life beneficiaries in the case at bar acquired an interest in the net income only to the extent of the specific amounts of income provided for them and they totally lack any interest in any surplus income over and above the specified amounts; the interest of the residuary legatees in the corpus and the accumulat[238] ed income,6 even though such interest be considered vested,7 takes effect in possession and enjoyment only upon the happening of a future event, i.e., the death of all the life beneficiaries and the arrival at age 21 of the youngest grandchild. Neither the life beneficiaries nor the residuary legatees have any interest which takes effect in immediate possession such as would bring them within the first part of the rule and thus entitle them to a distribution of the released income.
Under the second part of the rule, applicable only if the accumulations relate “to an interest not vested in possession”, the accumulated income goes to the residuary legatees only if the residuary estate is not the subject of the unlawful provisions providing for the accumulation of income. Thistles Estate8 supra, is illustrative of a situation where the residuary legatees lacked an interest taking effect in possession and the provision offending against the accumulation provision of the Act was contained in the residuary clause and the residuary legatees were held barred from receiving distribution of the released income. The instant factual situation is clearly within the second part of the rule. In the phraseology of that part of the rule, the accumulation relates “to an interest not vested in possession” and “the residuary estate itself [is] the subject of the [accumulation] provisions”, therefore “the income goes under the intestate laws to the next of kin.”
Furthermore, here the testator directed distribution of the corpus of his residuary estate “among all [his] grandchildren, in equal shares, the share of any deceased grandchild to be paid to his or her [239] issue, if any, otherwise to lapse”. Until the termination of this trust — -an event to take place in the future — those persons who will take the trust corpus cannot be established; only the death of all the life beneficiaries and the arrival of the youngest grandchild at age 21 will mark the time when the identity of such persons can be established and the eventual distributees of the corpus ascertained. Under such circumstances to whom, as residuary legatees, could the released income be now distributed? In Rhodes’ Estate, 147 Pa. 227, 23 Atl. 553, we adopted the language of Judge Penrose: “[The accumulated income] could not go to the residuary legatees, for their rights do not begin, nor, indeed, are they themselves ascertained, until the death of the tenants for life; it could not be held in the meantime, for accumulation, directly or indirectly, is forbidden [by the statute]. . . . Necessarily, therefore, not having been disposed of by the testator, it passed under the intestate laws.” See also: Martin’s Estate, 185 Pa. 51, 53, 39 Atl. 841; Edwards’s Estate, supra, 181; Sternbergh’s Estate, 250 Pa. 167, 171, 95 Atl. 404.
Accumulation of this income must cease in response to the legislative declaration of the illegality of such an accumulation. The balance of the accumulated income cannot be distributed under the will because (a) the life beneficiaries are specifically limited and restricted in amount to the portion of the income which they may take and (b) the residuary legatees lack any right to possession or enjoyment of their interest until the happening of a future event, i.e., the termination of the trust, and the provisions as to accumulations are included in the residuary grant. Distribution of the accumulated income must, therefore, be made under the statute to “such person or persons as would have been entitled thereto if such accumulation had not been directed”; under the factual sitúa[240] tion in the case at bar, the statute can only be interpreted to mean the next of kin of testator under the intestate laws.
In arriving at this conclusion we are mindful that in this will testator specifically directed that any accumulated income undistributed at the time of termination of the trust should be distributed in the same manner as the corpus of the trust and that he further directed that the trustee distribute to the residuary legatees in equal shares “the whole of [his] residuary estate, including undistributed income thereof” and we agree with the court below “that the testator probably intended that the grandchildren should receive the residuary of the trust estate . . . .” However, as we stated in Howell’s Estate, 180 Pa. 515, 519, 37 Atl. 181: “. . . when the policy of the law is violated by a direction to accumulate no effect should be given to the intention of the testator, and the distribution should be in accordance with the statute without regard to the will.”9
Our examination of the provisions of this will and those of the Act convinces us that the only conclusion possible is that distribution of the accumulated income must be made to testator’s next-of-kin under the intestate laws.
Decree affirmed. Costs to be paid by the estate.