Penrose's Estate , 257 Pa. 231 ( 1917 )

Per Curiam,

After argument of this appeal, at the January Term, 1916, the following order was made: “And now, February 11, 1916, it appearing that neither the auditor nor the Orphans’ Court has considered or determined a controlling question whether the remainder offends the rule against perpetuities which has been argued here, the case is remanded to the Orphans’ Court that the parties may be heard and the question may be determined. After the opinion has been filed by the court below, either party may move this court to advance the cause on the argument list.” The record was accordingly returned to the court below, which referred the question involved to the auditor, who filed an opinion, holding that the remainder offended the rule against perpetuities and was void. Exceptions to his report were dismissed by the court, the conclusion of its opinion being as follows: “We have reached the conclusion that the gift over to the Richland Monthly Meeting of Friends was void in its creation and that as to that interest the testatrix died intestate. The fund should therefore be distributed to the executors of Evan R. Penrose, deceased. The decree of this court of August 2, 1915, directing the auditor to make distribution to the Richland Monthly Meeting of Friends should be reversed and the original schedule of distribution reported by the auditor reinstated. As the appeal is still pending in the Supreme Court this court is without power to enter a decree in accordance with the foregoing conclusions. This opinion is respectfully submitted in conformity with the order of the Supreme Court.” The conclusion of the auditor, concurred in. by the learned court below, that the gift over to the Richland Monthly Meeting of Friends is void as offending the rule against perpetuities, is clearly correct, and the decree appealed from is now reversed and the report of the auditor, filed September 11, 1913, is absolutely confirmed.

Appeal sustained at appellee’s costs.