Cox v. Dickson

Wills — Tower of appointment — Exercise of power — Buie against perpetuities. 1. In determining whether the exercise of a general power of appointment by will violates the rule against perpetuities, the gift made by the donee must be considered as having been made at the time of the creation of the power, not at the time of its. exercise. 2. Testator devised certain real estate to his daughter for life with power to dispose of the remainder by will, and provided that if she should die intestate her children should take. The daughter died leaving a will wherein, after creating a life estate in such property, she devised a part of the remainder to her son for life and “on his death to such child or children of his as may then be living......and in the event of my said son leaving no child or children living at the time of his death, then I will and direct that the said property shall be divided among my nephews and nieces then living, per capita, share and share alike.” The son, who survived his mother, was married but had. no issue. On petition of the son who was in possession of the property an issue was framed to try title thereto; the nephews and nieces claimed an interest in such property contingent upon their surviving the son should he die without issue. The son contended that the appointment violated the rule against perpetuities and that he was the absolute donee of such property. Held, that the exercise of the power of appointment by the daughter must be read into the will of the original testator and so read it violates the rulé against perpetuities and was invalid, and that the son was entitled to the property under the provision of the will of the original testator devising the property of the daughter to her children should she die intestate.

Appeal, No. 281, Jan. T., 1916, by plaintiffs, from judgment of C. P. No. 5, Philadelphia Co., March T., 1916, No. 3531, on directed verdict for defendant in case of John L. Cox, Erskine H. Cox, Edward Y. Cox, Martha Cox Bryant, Fanny Cox Clark, Julia Cox Taber, Edith Cox Page, Alice Cox Wood, Harry W. Hazard, and Ethel Hazard'v. Arthur G. Dickson. Framed issue to try title to real estate upon petition of party in possession. The motion for judgment in favor of plaintiff is refused. Verdict for defendant by direction of the court and judgment thereon. Plaintiffs appealed. Errors assigned were in directing verdict for defendant and in refusing plaintiffs’ motion for judgment n. o. v.