source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    572 A.2d 1249
    In re ESTATE OF John H. WEAVER, Deceased Sur Trust, John H.W. Macklin. Appeal of Flora F. MACKLIN, M. Farrell, Macklin Shute, Elizabeth Stacey Macklin, Fidelity Bank, Accountant, Linda S. Macklin Marini, Valerie Macklin Paro, Vivian L. Macklin Megargee, and Floranne Macklin Burns.
    Superior Court of Pennsylvania.
    Argued May 3, 1989.
    Filed March 28, 1990.
    Petition for Allowance of Appeal Denied Aug. 13, 1990.

      Hugh J. Bracken, Philadelphia, for appellant.
    Edward J. Kaier, Philadelphia, for M. Farrell and Shute, participating party.
    David M. Jordan, Norristown, for Elizabeth S. Macklin, participating party.
    Pamela F. Wilford, Philadelphia, for Fidelity Bank, participating party.
    Carl N. Martin, II, Philadelphia, for Linda S. Macklin Marini, Valerie Macklin Paro, Vivian L. Macklin Megargee, and Floranne Macklin Burns, participating party.
    Before CAVANAUGH, TAMILIA and KELLY, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether the Orphans’ Court of Montgomery County properly applied the rule against perpetuities to a residuary trust which was formed by a will executed in 1934. The trust provided life estates in the interest income for the testator’s widow and his children, then to his grandchildren, with the principal to be liquidated and distributed to each of the testator’s great-grandchildren upon the death of their beneficiary parent. The last grandchild, John H.W. Macklin (Heil), died in 1987. The current controversy is whether Heil Macklin’s share of the trust principal should be distributed to his children, the testator’s great-grandchildren (appellees), or whether the trust corpus became part of Heil Macklin’s estate and should be given to Heil’s widow, Flora F. Macklin (appellant) as the sole residuary beneficiary under Heil Macklin’s will. The appellant contends the original trust was void under the rule against perpetuities in effect at the time of the testator’s death which considered possible rather than actual events to determine validity of future interests. The appellees, on the other hand, contend the “actualities test,” adopted by the legislature in 1947, and made retroactive by a statutory amendment in 1978, controls the distribution of the trust proceeds. We find the lower court properly applied the “actualities test” to the instant perpetuities problem and correctly ordered the trust corpus be distributed to the testator’s great-grandchildren.

The relevant facts and procedural history are as follows. John H. Weaver, the testator, died on April 26, 1934, leaving a will which set up a trust. The trust provided life estates of the trust income for his widow, Ida Weaver, who died on March 26, 1935, his daughter, Phoebe Weaver Macklin, who died on April 21, 1936, Phoebe Macklin’s husband John F. Macklin, who died on October 10, 1949, and for the children of the Macklin marriage (the testator’s grandchildren), Ida Weaver Macklin Lilley Wark, and Heil Macklin. Separate arrangements were made in the will for the children of the testator’s other daughter, Marian Weaver Downes Kampmann, who predeceased the testator. The will created one entire residuary trust which for all practical purposes (except for investment and administrative purposes) was divided into two equal shares — one-half for the Macklin line and one-half for the Kampmann line. In re Weaver’s Estate, 390 Pa. 128, 137, 134 A.2d 675, 681 (1957).

The following diagram correctly outlines the line of Macklin estates involved:

In his will, the testator provided that after the death of his widow, Ida Weaver, the income from the trust and the remainder interests in the principal would be divided into two equal shares, one for the Macklin line and one for the Kampmann line. The testator directed that the income from the Macklin’s share be paid to his daughter, Phoebe Weaver Macklin for life. Then, after her death, her share in the trust income was to be paid in accordance with section 7(B)(2)(b) of the will, which provided:

Upon the death of my daughter, Phoebe Weaver Macklin, I direct my trustees to pay the remaining one-half of her share of income to her children then living and the issue of such of her children, if any, as may have died, in equal shares, per stirpes and not per capita, for and during the life of each of such beneficiaries, or so long as the payment of such income shall be permitted under the laws of the Commonwealth of Pennsylvania in force at the time of my death. Upon the death of each of such beneficiaries, the issue of Phoebe Weaver Macklin, or upon the earlier termination of said trust as hereinabove provided, then I direct that the portion of the principal of my residuary estate represented by the proportion of income, which such issue of my daughter, Phoebe Weaver Macklin, shall then be entitled to receive, including the proportion of income payable to such issue after the death or remarriage of John F. Macklin, shall be paid over by my trustees to said respective beneficiaries if living, and if dead then to the issue of such respective beneficiaries per stirpes absolutely; and in the event of failure of issue of any such beneficiary, to pay said principal share to the then living issue of my said daughter, Phoebe Weaver Macklin, in equal shares per stirpes.

(Emphasis added).

After Phoebe Weaver Macklin’s death in 1936, her children, Ida Weaver Macklin Lilley Wark and John H.W. Macklin (Heil) began receiving income from the trust. Upon John F. Macklin’s death in 1949, Ida Weaver Macklin Lilley Wark and Heil Macklin each received one-half of the Macklin line’s share of the trust income. Ida Weaver Macklin Lilley Wark died in 1953. Her share of the trust principal was distributed to her four surviving children, the great-grandchildren of the testator. However, the trust continued to provide income for the testator’s last surviving grandchild in the Macklin line, Heil Macklin. In re Weaver’s Estate, supra, 134 A.2d at 676.

When Heil Macklin died in 1987, the trust purpose (to provide support for the testator’s widow, children, and grandchildren) ended. The surviving trustee, Fidelity Bank, filed an account and requested the Orphans’ Court of Montgomery County to approve its proposed distribution of the . trust principal to the testator’s great-grandchildren. In its Petition for Adjudication, Fidelity Bank proposed the trust principal be distributed to Heil Macklin’s five daughters, M. Farrell Macklin Shute, Linda Macklin Marini, Valerie Macklin Paro, Vivian L. Macklin Megaree, and Floranne Macklin Burns as well as a share to Elizabeth Macklin, the daughter of John H.W. Macklin Jr., Heil Macklin’s son who predeceased him. The above mentioned group are the appellees.

The appellant, Flora F. Macklin, Heil Macklin’s widow, filed timely objections to the account and the proposed distribution to the appellees. The appellant contended that according to the rule against perpetuities in effect in 1934, the remainder to the great-grandchildren was void and the trust principle was part of Heil Macklin’s residuary estate to which the appellant was entitled as sole beneficiary under Heil Macklin’s will. Following an agreement by counsel for all concerned parties and the court, the objections were submitted to the court for a decision on the briefs. The objections were dismissed and the account was confirmed nisi by the decision and order of the Orphans’ court. Thereafter, the appellant filed Exceptions to Adjudication. After oral argument, the Orphans’ court, sitting en banc, dismissed the exceptions and confirmed the adjudication absolutely. This timely appeal followed.

On appeal, the appellant has raised the following three issues for our consideration:

I. WHETHER THE TESTATOR INTENDED THAT THE DURATION OF CERTAIN INCOME INTERESTS IN THE TRUST BE LIMITED TO THE TIME ALLOWED UNDER THE RULE AGAINST PERPE-TUITIES IN EFFECT IN 1934?
II. WHETHER THE APPLICATION OF THE RULE AGAINST PERPETUITIES IN EFFECT IN PENNSYLVANIA IN 1934 WAS CONTROLLED BY POSSIBLE RATHER THAN ACTUAL EVENTS?
III. WHETHER THE TRUST TERMINATED DURING THE LIFETIME OF HEIL MACKLIN OF WHOM THE APPELLANT IS WIDOWED?

(Appellant’s Brief at 2-4).

Before we reach the issues raised by the appellant, we must first review the development of the perennially troublesome rule against perpetuities in Pennsylvania. Professor John Chipman Gray, a leading authority in the field stated:

There is something in the subject which seems to facilitate error. Perhaps it is because the mode of reasoning is unlike that with which lawyers are most familiar.
A long list might be formed of the demonstrable blunders with regard to its questions made by eminent men, blunders which they themselves have been sometimes the first to acknowledge; and there are few lawyers of any practice in drawing wills and settlements who have not at some time either fallen into the net which the Rule spread for the unwary, or at least shuddered to think how narrowly they have escaped it.

Gray, The Rule Against Perpetuities, xi (4th ed.1942); see also Leach, Perpetuities Legislation 67 Harv.L.Rev. 1349, 1349 (1954) (describing the rule as a “technicality-ridden legal nightmare” and á “dangerous instrumentality in the hands of most members of the bar”).

Professor Gray’s definitive statement of the rule against perpetuities, “no interest is good unless it must vest, if at all, no later than twenty-one years after some life in being at the creation of the interest” has been adopted by nearly every court which has decided a perpetuities case. Gray, The Rule Against Perpetuities, supra, at 191. Moreover, we note that,

The common law rule against perpetuities is a rule against remoteness of vesting. A contingent future interest is invalid under the rule, if at the time of the creation of the interest, the circumstances are such that the contingency may go' unresolved for too long a time. The rule is not concerned with the duration of interests, that is, the length of time they endure____ It is not a rule which limits directly the duration of a trust. There is no violation of the Rule Against Perpetuities even though the trust may endure beyond the perpetuities period. The Rule is satisfied if all contingent future interests are created so that they must vest, if they vest at all, within the perpetuities period.

Lynn, A Practical Guide to the Rule Against Perpetuities, 70 Duke L.Rev. 207, 211 (1964) (citations omitted).

The evolution of the rule against perpetuities in the area of class gifts has had three distinct developmental stages in Pennsylvania. The first stage began with the founding of Pennsylvania and lasted until 1929. During this period, Pennsylvania followed the early common law rule against perpetuities which then called for the remorseless application of the “possibilities test” to determine the validity of all future interests. Under this rubric, a future interest, such as a remainder in a trust to all great-grandchildren, was void if there was even the slightest possibility that it might vest beyond the permissible period of a life or lives in being plus twenty-one years. See generally Levin, Section 6104(D) of the Pennsylvania Rule Against Perpetuities: The Validity and Effect to the Retroactive Application of Property and Probate Law Reform, 25 Vill.L.Rev. 213 (1980).

The second stage of development was a transitional period which lasted from 1929 to 1947. During this time period, our Supreme Court attempted to eliminate some of the harsher results which occurred in the area of the class gifts under the common law rule against perpetuities’ “possibilities test” by adopting the doctrine of vertical separability. See Kern’s Estate, 296 Pa. 348, 145 A. 824 (1929). The doctrine of vertical separability held that valid remainders would be separated from void ones and given effect if it would not alter the overall testamentary scheme of distribution. See generally Murphy, Separability and the Rule Against Perpetuities, 77 Dick.L.Rev. 277 (1973).

The third stage or modern era began in 1947, when the General Assembly passed the Intestate, Wills and Estates Act of 1947 which replaced the common law rule against perpetuities’ “possibilities test” by statutorily adopting the “actualities test” to determine the validity of a future interest. The new statute which became effective on January 1, 1948 stated:

(a) General. — No interest shall be void as a perpetuity except as herein provided.
(b) Void interest; exceptions. — Upon the expiration of the period allowed by the common law rule against perpetuities as measured by actual rather than possible events, any interest not then vested and any interest in members of a class the membership of which is then subject to increase shall be void.
(c) Time for beginning period. — The period allowed by the common law against perpetuities under subsection (b) of this section shall be measured from the expiration of any time during which one person while living has the unrestricted power to transfer to himself the entire legal and beneficial interest in the property.

Estates Act of 1947, Section 4(b), 20 P.S. § 301.4(b).

The new rule required Pennsylvania courts to determine the validity of future interests in accordance with events which actually occurred during the period of the common law rule against perpetuities, a life or lives in being plus twenty-one years, and not by events which could possibly occur during this period. The adoption of the actualities test approach eliminated some of the more improbable possibilities that determined the validity of some future interests under the old rule such as the fertile octogenarian and the unborn widow.

After the adoption of the “actualities test” approach, our Supreme Court interpreted the statute to be applicable only to testamentary trusts created after January 1, 1948. See In re Newlin Estate, 367 Pa. 527, 80 A.2d 819 (1951); In re Lovering’s Estate, 373 Pa. 360, 96 A.2d 104 (1953); Estate of Davis, 449 Pa. 505, 297 A.2d 451 (1972). However, in 1978, the legislature amended the 1947 statutory rule against perpetuities to provide for retroactive application:

(d) Applicability. — The provisions of this section and of section 6105 (relating to rule against perpetuities; disposition when invalidity occurs) shall apply to all interests heretofore and hereafter created.

20 Pa.C.S.A. § 6104(d). The official comment clarifies the legislative intent by stating: “Whatever may have been the case when the Estates Act of 1947 was drafted, there now appears to be no constitutional bar to making provisions of Section 6104 and 6105 of the Probate, Estate, and Fiduciaries Code applicable to all interests, whenever created.” 20 Pa.C.S.A. § 6104(d) comment (emphasis supplied).

In the case at bar, the appellant, Flora F. Macklin, contends that it was the testator’s intention to limit the duration of the trust to the time period allowed under the 1934 interpretation of the rule against perpetuities. The appellant argues this intention can be construed from the following language contained in the testator’s will:

(b) Upon the death of my daughter, Phoebe Weaver Macklin, I direct my trustees to pay the remaining one-half of her share of income to her children then living and the issue of such of her children, if any, as may have died, in equal shares, per stirpes and not per capita, for and during the life of each of such beneficiaries, or so long as the payment of such income shall be permitted under the laws of the Commonwealth of Pennsylvania in force at the time of my death.

Section 7(B)(2)(b) (emphasis added). The appellant relies upon the emphasized portion of section 7(B)(2)(b) to assert that it was the testator’s intent to devise life estates to each of the Macklin grandchildren, and if the remainder to the great-grandchildren violated the 1934 interpretation of the rule against perpetuities, the entire interest was to pass to the Macklin grandchildren in fee simple twenty-one years after the death of their last surviving parent. The appellant has framed the issue in her first contention in such a manner as to lead one to believe that the remainder to the testator’s great-grandchildren was invalid under the 1934 interpretation of the rule against perpetuities for class gifts. However, careful research of the pre-1947 law for class gifts reveals this contention is unfounded.

Under the 1934 interpretation of the rule against perpetuities for class gifts, the remainder provided by the testator to his great-grandchildren was perfectly valid. The appellant has attempted to argue that all of Pennsylvania’s pre-1947 rule against perpetuities class gift law evolved from Leake v. Robinson, 2 Mer. 363, 35 Eng. Reports 979 (1817), and its Pennsylvania progeny, Kountz’s Estate, 213 Pa. 390, 62 A. 1103 (1906), Lockhart’s Estate, 306 Pa. 394, 159 A. 874 (1932), and In re Newlin’s Estate, supra. The rule from Leake states: if an interest is created in favor of one big class and it is possible for some person to be born into that class at a time beyond the period permissible under the rule against perpetuities, then the entire class gift is void. Lockhart’s Estate, supra, 159 A. at 877. The appellant argues that this rule was applicable to all cases involving class gifts before the passage of the 1947 Intestate, Wills and Estates Act. However, this argument is flawed. During the transitional period between 1929 and 1947, this rule was only applied in Pennsylvania to cases where there was a single remainder to a single class which remained open until the death of the survivor of the class of secondary life tenants.

In cases like the instant one, where the grandchildren were alive at testator’s death, and the share of each was separate and ascertainable, Pennsylvania followed the doctrine of vertical separability set down in Caitlin v. Brown, 11 Hare 372, 68 Eng. Reports 1319 (1853). The doctrine of vertical separability holds:

When gifts are made to several persons by one description, but the amount of the gift to one is not affected by the existence or nonexistence of the others, then the gifts are separable.
* * * # * *
When, on a gift to a class, the number of shares is definitely fixed within the time required by the rule against perpetuities the question of remoteness is to be considered with reference to each share separately.

Gray, Rule Against Perpetuities, supra, at 342, 345. The doctrine was applicable where valid remainders could be separated out from void ones and sustained without disturbing the testamentary scheme. The valid remainders are separated from the illegal one and given full effect. See Kern’s Estate, 296 Pa. 348, 145 A. 824 (1929); McCaskey’s Estate, 293 Pa. 497, 143 A. 209 (1928); In re Estate of Morton, 454 Pa. 385, 312 A.2d 26 (1973). The doctrine was adopted in Kern’s Estate, supra, and followed in Smith’s Estate v. Commissioner, 140 F.2d 759 (3rd Cir.1944) (applying Pennsylvania’s rule against perpetuities to a class gift), and In re Harrah’s Estate, 364 Pa. 451, 72 A.2d 587 (1950) (applying pre-1947 law to a class gift contained in a will executed in 1890).

In Harrah, our Supreme Court applied the pre-1947 rule against perpetuities to an 1890 will that closely resembled Weaver’s will. The testamentary trust called for successive life estates in the trust income for the testator’s son and grandchildren with the remainder to be distributed to the testator’s great-grandchildren. As in the instant case, the great-grandchildren’s remainder was challenged as a violation of the rule against perpetuities. The objectors argued that it would have been possible for the testator’s son to have more children after the testator’s death, and these after born children could have subsequently had children born more than twenty-one years after the death of the grandchildren alive during the testator’s lifetime. There, however, as in the instant case, the hypothesized scenario did not actually occur.

In Harrah, our Supreme Court applied the doctrine of vertical separability and held that the remainder to the heirs of the various grandchildren alive at the testator’s death, was separable from the remainder to the heirs of a possibly after born child of the testator’s son; because the separation of the valid remainder from the void one would not alter the overall testamentary plan. The court stated, “[i]t would be an extremely and socially unwise application of the rule against perpetuities to hold all the gifts in the remainder void as violative of the rule.” In re Harrah’s Estate, supra, 72 A.2d at 591.

The holding in Harrah is directly applicable to the instant case, and demonstrates the fact that the doctrine of vertical separability was part of Pennsylvania law long before the execution of Weaver’s will. Under the doctrine, because Heil Macklin was a life in being at the time of the will’s execution, the remainder to his issue was valid, and any possibly void remainder interest to after born children of his mother, which, as in Harrah, did not actually occur, was separable. Accordingly, we find the appellant’s argument that the remainder to Heil Macklin’s issue was void under the 1934 interpretation of the rule against perpetuities to be without merit.

Moreover, we find that the appellant’s argument that her erroneous interpretation of the 1934 rule against perpetuities for class gifts should be the controlling factor in determining the testator’s intent for the distribution of his estate to be contrary to the well settled rules of will construction in this Commonwealth. The primary goal of the construing court is to effectuate the intent of the testator. In order to ascertain the testamentary intent, a court must focus first and foremost on the precise wording of the will, and if ambiguity exists, on the circumstances under which the will was executed, only if the testator’s intent remains uncertain may a court then resort to the general rules of construction. In re Estate of Tashjian, 375 Pa.Super. 221, 226, 227, 544 A.2d 67, 70 (1988). The words of a will are not to be viewed in a vacuum but rather as part of an overall testamentary plan. In re Estate of Ogden, 353 Pa.Super. 273, 276, 509 A.2d 1271, 1273 (1986). Specific words or phrases will be rejected when they subvert or defeat the testator’s whole testamentary scheme and divest the bounty from those whom he obviously intended to benefit. In re Estate of Hill, 432 Pa. 269, 279, 247 A.2d 606, 612 (1968), citing March’s Estate, 357 Pa. 216, 219, 53 A.2d 606, 607 (1947).

Our Supreme Court had previously applied these rules of will- construction to Weaver’s will in the litigation that ensued after the death of Heil Macklin’s sister, Ida Weaver Macklin Lilly Wark in 1953. After a careful examination of the testator’s meticulously drafted will, our Supreme Court stated that it was the testator’s intent that: "... the Macklin great-grandchildren, upon the death of their respective parent, receive absolutely their respective share, per stirpes, of the principal from which their parent had been receiving income. In re Weaver’s Estate, supra, 134 A.2d at 680-81. The appellant has not advanced any argument which could lead us to conclude that our Supreme Court erroneously construed the testator’s intentions for the distribution of his estate. Therefore, we have no hesitation in following our Supreme Court’s finding that it was the testator’s intention that the trust remainder be distributed to his great-grandchildren after the death of his grandson, Heil Macklin.

Viewed in light of this supervening intention, the clause of the will previously quoted appears no more than an attempt to provide the probate court with a basis to reform the trust by cutting off any interests deemed to violate the perennially obscure and troublesome rule against perpetuities. To construe the provision as indicating an intent to cut off the trust, in accordance with appellant’s view of the law in 1934, would require us to presume the testator had knowledge of the precise operation of the rule which the very clause in question clearly indicates he did not have, and would likewise require us to believe he went to the difficulty of designing a trust which by its express terms was intended to reach his great-grandchildren but he nonetheless intended that it be cut off, by operation of the clause in question, before the remainder could be distributed to them. If the testator actually had intended such a result, he certainly would have stated it in vastly simpler and more direct language. Accordingly, we could not construe the provision in the manner suggested by the appellant, even if her erroneous assumptions regarding the law in effect in 1934 had been correct.

The appellant’s second contention is that the trial court erred when it applied the statutorily amended “actualities test” which provided for its retroactive application to all future interests in this Commonwealth to determine whether the remainder to the testator’s great-grandchildren was valid. The appellant contends that the lower court should have applied the “possibilities test” to determine whether the great-grandchildren’s remainder was valid. The appellant argues that had the proper test, the “possibilities test,” been applied, the great-grandchildren’s remainder would have been declared void, and the trust principal would have become part of Heil Macklin’s residuary estate. We find this argument to be without merit.

As we have previously discussed in this opinion, when the “actualities test” was first adopted by the Legislature in 1947, it was only applicable to future interests created after January 1, 1948. However, the statute was amended in 1978 to make its application retroactive to all future interest regardless of their date of creation. See 20 Pa.C.S.A. § 6104(d).

Our Supreme Court applied the amended statute for the first time in In re Frank, 480 Pa. 116, 389 A.2d 536 (1978). In Frank, the settlor, Issac W. Frank, created an irrevocable trust in 1927 from which he received the trust income for life and after his death, the trust income went to his three grown and married children, Bessie Frank Ana-than, William K. Frank and Robert J. Frank for life. The settlor also provided that if a beneficiary child died their spouse would receive their share until their death or remarriage. The trust was to continue until the death of the last of the Frank children or their surviving spouses, at which time the trust corpus was to be distributed to the settlor’s grandchildren. In re Frank, supra, 389 A.2d at 538.

William K. Frank’s first wife, Florence Frank, died after the death of the settlor. William K. Frank then married Mary K. Frank, who outlived her husband, his siblings and their spouses. Upon the death of Bessie Frank Anathan, the last surviving child, the trustees petitioned the court for distribution of the trust corpus to the grandchildren. The trial court refused the trustees’ request, holding that the trust would not terminate until Mary K. Frank, daughter-in-law of the testator died or remarried.

On appeal, the grandchildren contended that the trust was only meant to benefit the Frank children’s respective spouses at the time of the trust’s creation in 1927, and that payment to William K. Frank’s second wife was contrary to the settlor’s intent. The grandchildren argued payment to Mary K. Frank was against the rule against perpetuities’ unborn widow possibility, in effect in 1927, therefore the trust was void and should be distributed to the grandchildren.

Our Supreme Court affirmed the trial court’s application of the amended statute making the “actualities test” retroactively applicable “to all interests heretofore or hereafter created.” 20 Pa.C.S.A. § 6104(d). The court held that under the “actualities test,” Mary K. Frank, who was eleven years old at the time of the trust’s creation, was a life in being; therefore, the payment of the trust income to her as a surviving daughter-in-law presented no violation of the rule against perpetuities.

In the instant case, as in Frank, the trial court correctly applied the retroactive “actualities test” to a remainder which was created in a 1934 will to determine its validity. Under the “actualities test,” the appellant’s argument that it would have been possible for the testator’s daughter, Phoebe Weaver Macklin to have had additional children after the testator’s death, and these after-born children could possibly have had children outside the time period allotted under the rule against perpetuities is inapposite, as the fertile octogenarian possibility is no longer part of Pennsylvania law. The “actualities test” is only concerned with events that actually occur during the time period allowed under the rule against perpetuities.

Heil Macklin was alive at the time of his grandfather’s death and his mother Phoebe Weaver Macklin did not have any additional children after the testator’s death. This makes Heil Macklin the measuring life for the validity of his issue’s remainder interest in the trust. The twenty-one year rule against perpetuities period commenced upon Heil Macklin’s death. All of the remainder beneficiaries were ascertainable at that time, therefore the remainder to the great-grandchildren or their descendents vested well within the time period allowed by the rule against perpetuities and is valid.

Moreover, the appellant’s argument that the remainder to the great-grandchildren is void under the “possibilities test” is also without merit. At the time of the execution of Weaver’s will in 1934 the rule against perpetuities for class gifts was in its transitional stage. Our Supreme Court was attempting to eliminate some of the harsher results which occurred to class gifts under the common law rule against perpetuities’ “possibilities test” by adopting the doctrine of vertical separability in 1929. See Kern’s Estate, supra, and In re Harrah’s Estate, supra. If the pre-1947 law were to be applied to the instant case, the remainder to Heil Macklin’s issue would have been separated from the void remainder and given full effect because it would not have been disruptive to the testator’s overall testamentary plan. Accordingly, we find the appellant’s second contention to be without merit.

Finally, as it can be readily seen from our discussion of the previous two issues, the appellant’s third contention, that the trust terminated during Heil Macklin’s lifetime and the trust proceeds became part of his residuary estate, is also without merit. It was the testator’s clearly stated intent that his testamentary trust be used to provide income to his grandchildren until their death. Each grandchild’s share of the trust proceeds was to be paid over to their issue at the grandchild’s demise. The testator’s intended distribution to his great-grandchildren was permissible under the 1934 interpretation of the rule against perpetuities for class gifts, and is also valid under today’s statutorily amended rule against perpetuities for class gifts. The testator’s intentions were followed after the death of Heil Macklin’s sister, Ida Weaver Macklin Lilly Wark in 1953, and her share of the trust proceeds were properly distributed to her issue. See In re Weaver’s Estate, supra.

Instantly, we can find no legitimate reason to thwart the testator’s intention that after the death of his grandson, Heil Macklin, the proceeds of the testator’s testamentary trust be distributed to his great-grandchildren, the issue of Heil Macklin. Accordingly, we agree with the Orphans’ court’s finding that the trust did not terminate until Heil Macklin’s death. We also agree that the trust proceeds belong to Heil Macklin’s issue or their descendents and should be distributed according to the family agreement reached among the appellees.

Order affirmed.

TAMILIA, J., concurred in the result.

      . In 1976, the Court of Common Pleas of Montgomery County, Orphan’s Court Division, divided the trust into two separate trusts. Weaver’s Estate, 2 D. & C.3d 717 (Montg.Co.1976). This appeal involves only the Macklin line.

      . Also joining appellant in this appeal are her two daughters, Lisa M. and Sharon Taylor, stepdaughters of Heil Macklin. However, any interests they have are subsidiary to Flora F. Macklin's claim and not directly involved in this litigation.

      . See generally Leach, Perpetuities in a Nutshell, 51 Harv.L.Rev. 638, 643 (1938).

      . See generally Disston’s Estate, 46 D. & C. 496 (Pa. 1942), aff’d 346 Pa. 129, 36 A.2d 457 (1944).


author: HESTER Judge:

text:
    572 A.2d 1258
    COMMONWEALTH of Pennsylvania v. Eugene Edward PATTERSON Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1989.
    Filed April 6, 1990.

      Daniel J. Brabender, Jr., Erie, for appellant,
    John J. Trucilla, Asst. Dist. Atty., Erie, for the Com., appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   HESTER Judge:

Eugene Patterson appeals from the February 17, 1989 judgment of sentence of life imprisonment entered by the Court of Common Pleas of Erie County following conviction by a jury for the murder of a ten-year-old girl in Millcreek, Pennsylvania, on July 19, 1966. Appellant asserts that the trial court committed numerous errors. We find no merit in appellant’s allegations, and we affirm.

The record reveals the following. The victim, ten-year-old Christine “Tina” Watson, and six-year-old Thomas Levis were playing near a bridge over Walnut Creek in their rural neighborhood in Erie County on July 19, 1966. Thomas Levis stated that a white male of medium build with a slight beard in a white checked shirt approached them, asking them to help him catch minnows around a bend in the stream. He also offered them chewing gum. The victim accompanied the man around a bend in the stream just north of the bridge, but Thomas Levis declined. The victim’s sister and a friend, Mary Beth, arrived within minutes seeking Tina since she was late for lunch. Thomas Levis informed them that Tina had accompanied a stranger around the bend. The girls called for Tina and tried to find her in the woods without success. Mary Beth was startled by a man in a red checked shirt with facial hair and an angry expression who rushed from behind nearby bushes. They then heard him depart rapidly from the area in his automobile, tires screeching.

The police were summoned when Tina was not found. One of the first to arrive, Patrolman Hammer, discovered the girl three hundred yards downstream from the bridge behind a tall bush, with her throat slashed. The police secured the area and the coroner was summoned. When the body of the victim was moved, those present observed a six-pointed star toy “deputy” badge under her. The coroner later removed hair and particles from the girl’s hand and fingernails, but the results of the tests that he performed were inconclusive.

Police placed roadblocks in the area to inquire of motorists if they had observed a man or a parked automobile near the bridge. Those who responded affirmatively remembered a shiny black late-model car parked on a dirt berm near the bridge. Based on Mary Beth’s description of the man and the descriptions of the car by motorists, police questioned appellant since he both matched Mary Beth’s description and his automobile was a black late-model vehicle. While appellant was being questioned in a room with numerous plain clothes officers, Thomas Levis identified him positively from behind a glass window, stating “Yes, that’s the man but his hair is different, he bleached it.” Notes of Testimony (“N.T.”), 1/10/89 at 34. However, appellant denied any knowledge of the crime and was released.

During questioning by police, appellant had denied thé charges and stated that he had quit his job earlier that morning and had gone fishing within a twenty minute drive of the murder scene. In the early afternoon, he had his hair cut and shaved. He subsequently showered and washed his clothes. Later in the afternoon, he picked up his wife from work. Police requested that he give them the clothes that he had worn earlier in the day and sought permission to search his automobile. Appellant consented to the search, but it revealed nothing. However, a number of people who viewed his automobile that night identified it as identical to the one that had been parked next to the bridge on the day of the murder. Two days later, police obtained fragments of the clothing that appellant had been seen burning following the murder in an open field owned by his father. Appellant explained that he burned some of his clothes and old shoes because they were covered with fish blood. N.T., 1/12/89, at 42.

Five days later, police utilized the victim’s and appellant’s clothing along with a volunteer dog-handler, to track the scent of the victim and appellant at the murder scene. Testimony revealed that the dogs tracked the victim to the scene of the killing and then tracked appellant's scent from the bridge to close to the scene.

Finally, trial evidence revealed that Reverend Merle Dickson, who previously had been assigned by the court to counsel appellant after his unrelated arrests for indecent exposure, telephoned the police to warn them that he would bring appellant to the station since appellant desired to confess to the murder. Appellant, however, subsequently changed his mind.

On appeal, appellant argues that the trial court erred in not quashing the information since it violated the prohibition against ex post facto prosecution. Specifically, he contends that he unconstitutionally is charged with homicide under 18 Pa.C.S. § 2501 and murder under 18 Pa.C.S. § 2502 when these statutes were not in existence at the time of the murder in 1966, and did not become effective until June, 1972, and June, 1973, respectively.

Appellant notes that prosecution under a newly-enacted law violates the ex post facto prohibition when it changes the rules of evidence, the penalties, or the elements of the offense. See Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (the critical question is whether the law changes the legal consequences of acts occurring prior to its effective date). He observes that the statutory definition of the crime was changed from “willful, deliberate, and premeditated” murder, 18 P.S. § 4701, to an “intentional killing”, 18 Pa.C.S. § 2502(d).

The Commonwealth responds that 18 Pa.C.S. § 2502(d) defines an “intentional killing” as “willful, deliberate and premeditated”. Further, the elements needed to establish the crime essentially are the same, and the penalty to which appellant is subject, life imprisonment, is the same. Consequently, the Commonwealth concludes that appellant’s rights were not violated since the elements of the crime, the burden of proof, and the legal consequences of his crime are equivalent. Commonwealth v. Hoetzel, 284 Pa.Super. 623, 426 A.2d 669 (1981); Commonwealth v. Whitfield, 275 Pa.Super. 530, 419 A.2d 27 (1980) (a statute is invalid as ex post facto only if it makes criminal what was not criminal, aggravates the seriousness of a crime, increases a punishment, or changes the rules of evidence to a lesser standard of proof). We agree with the Commonwealth’s analysis of this issue.

Appellant’s second argument is that the trial court erred in finding that he was not prejudiced by the twenty-two year delay in prosecuting this case. Specifically, appellant contends that all of the information used in his prosecution was available to the Commonwealth in 1966, that the delay renders the memories of defense witnesses less reliable, and that certain witnesses, including the barber who cut his hair and patrons at a taproom he visited on the day of the murder, were unavailable due to the delay. He further contends that even though prosecution for murder is not subject to a statute of limitations, it is limited by due process. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

We note that in order to establish a due process violation for a delay in prosecution, appellant must show that the delay caused substantial prejudice and that the reasons for the delay were improper. Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987); Commonwealth v. Murphy, 305 Pa.Super. 246, 451 A.2d 514 (1982). We find that appellant has failed to establish a claim of substantial prejudice. The barber was not an essential witness; the fact that appellant went to the barber shop is undisputed. He also fails to allege which patrons became unavailable or that they would have exonerated him in 1966. We will not credit unsubstantiated claims of prejudice. Finally, dimmed memories alone do not cause substantial prejudice. We note that appellant could recall selective events from the period and that the murder was such an indelible event that witnesses clearly remembered it. We conclude that any prejudice to appellant from the delay was minimal, since he at no time alleged an alibi defense, and in fact, the delay may have benefited him.

In addition, the delay was not motivated by improper considerations, such as eliminating favorable defense evidence. The record establishes that appellant was prosecuted when two events occurred: another prime suspect was absolved and a witness suddenly linked appellant to the toy sheriff badge found under the victim’s body. We find no factual support for appellant’s assertion that the delay in bringing him to trial was deliberate or purposeful. The Commonwealth made a reasonable investigation in 1966 but failed to substantiate appellant’s presence at the scene of the murder. The decision to reopen the investigation after elimination of another prime suspect resulted in a witness recalling that he had noticed a toy badge in appellant’s home and in appellant’s chest pocket on another occasion. Even an adverse effect on appellant’s defense is excusable if the delay was a derivation of reasonable investigation by authorities. Commonwealth v. Sneed, supra. We conclude that the reason for the delay proffered by the Commonwealth was proper, in that it previously failed to elicit physical evidence that directly linked appellant to the crime despite a thorough investigation. We find no evidence that the delay was deliberate. Furthermore, any unconstitutional delay commences from when appellant was charged with a crime and not from when authorities were aware of it. United States v. Marion, supra.

Appellant next argues that the prosecution failed to lay a proper foundation for admission of testimony regarding the dogs’ tracking. He contends that the 1966 police report fails to eliminate certain events which may have invalidated the tracking. He alleges that the police accidently might have added their scent to the clothing and that their prior search of the area might have contaminated the trail, thereby inducing the dogs to track the policemen’s scent by mistake. Appellant further contends that the tracking was questionable since one dog was guided by an inexperienced handler, one dog could not detect appellant’s scent at all, and “dry, practice runs” were not made that day to test the dogs’ fitness. In addition, the trail was over five days old at the time of the tracking, and according to experts’ opinions, three or four days is the maximum period that a scent can be detected. Finally, appellant contends the dogs were underweight, one recently had been injured, and they were fatigued as a result of travel to the site.

The Commonwealth counters that a proper foundation had been laid under the standard set forth in Commonwealth v. Michaux, 360 Pa.Super. 452, 520 A.2d 1177 (1987), which states that a proper foundation is laid for testimony concerning dog tracking when it is established that the handler and dogs were qualified by training and experience, the dogs were placed on the track where circumstances showed the defendant had been, and the trail was not so stale or contaminated that a viable track did not exist.

Instantly, testimony at the suppression hearing revealed that the dog handler had over forty years experience in the field of dog tracking, the dogs were kept in an air-conditioned trailer to keep their nostrils fresh, and the dogs were primed with the victim’s and appellant’s clothing near the bridge where circumstances and witnesses placed them both. The dog trainer testified, contrary to accepted authority, that in his experience trails were viable for five days or more in certain similar, moist, wooded conditions. The trainer further testified that the dogs were able to track despite the travel, their reduced weight, or injury. Furthermore, to corroborate their ability to track appellant, the dogs were given appellant’s scent near his dwelling, and they proceeded to his automobile, and then to the rear entrance of his apartment.

Admissibility of evidence is a matter left to the sound discretion of the trial court and will not be disturbed absent on abuse of discretion. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987). We conclude that the trial court did not abuse its discretion in determining that a proper foundation existed, leaving the jury to weigh the credibility and reliability of the testimony concerning the various aspects of dog tracking. See Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973).

Next, appellant argues that his statements to Reverend Dickson were privileged and inadmissible. He argues that Reverend Dickson is a duly ordained clergyman, appellant attended his church with his wife, and communications to a clergyman are privileged under 42 Pa.C.S. § 5943; see also Commonwealth v. Musolino, 320 Pa.Super. 425, 467 A.2d 605 (1983) (privilege applied). Appellant contends that communications with a clergymen in the course of his duties are presumed privileged and that there is no requirement that they also be confessional or penitent in nature. At issue is Reverend Dickson’s testimony regarding appellant’s desire to confess to the crimes and his observation that appellant had a toy sheriff badge in his possession on two separate occasions.

The Commonwealth argues that not all communications to a clergymen are privileged. The privilege is limited to information told in confidence to a religious confessor or counselor. See Fahlfeder v. Commonwealth of Pennsylvania Board of Probation and Parole, 80 Pa.Cmwlth. 86, 470 A.2d 1130 (1984). Reverend Dickson was appointed by the court as a counselor to appellant concerning his unrelated arrests for indecent exposure. Appellant never was a practicing member of Reverend Dickson’s parish, although he had attended services there with his wife. The Commonwealth maintains that appellant never sought Reverend Dickson or indicated that his statements were to be held by him in confidence. In fact, he wanted Reverend Dickson to accompany him so that he could confess to the police. Further, the circumstances in which the statements were made were such that they were not religious, in that nothing spiritual or in the nature of forgiveness ever was discussed. Further, the Commonwealth argues that observations of the toy badge clearly are not privileged statements or communication.

We agree with the Commonwealth that our legislature did not intend a per se privilege for any communication to a clergymen based on his status. We therefore look to the circumstances to determine whether appellant’s statements were made in secrecy and confidence to a clergyman in the course of his duties. We categorically reject the allegation that this privilege extends to openly-displayed objects, as was the toy sheriff badge.

As noted supra, Reverend Dickson had been appointed by the court to counsel appellant concerning appellant’s indecent exposure infractions. It was Reverend Dickson who approached appellant when the clergyman concluded from newspaper articles that appellant might have murdered Tina Watson. Appellant never sought Reverend Dickson in a confessional role; further there was no evidence that Reverend Dickson was acting in any capacity other than that of counselor. Thus, the statements were not motivated by religious considerations or in order to seek the forgiveness of God. Accordingly, they were not made to Reverend Dickson in the course of his duties as a minister. Instead, they were made because he was a court-appointed counselor. Further, appellant never was a member of the church. Under these circumstances, we conclude that the fact that Reverend Dickson is ordained was not relevant to appellant’s statements to him and there is no basis to conclude that appellant’s statements were made confidentially or for religious, penitent purposes. Therefore, we conclude that section 5943 does not apply.

Appellant next contests the admission of certain physical evidence, including a shirt, trousers, cowboy boots, several knives, and burned remains of a rain jacket, gloves, and boots. He argues that there is no basis to determine that these items were obtained with a lawful warrant or pursuant to any constitutional exception to the search warrant requirement. The Commonwealth was not able to produce the originals or any copies of two search warrants in this case, one for the clothing and knife found in his home and one for the burned debris obtained from his father’s land, since both had been purged from the records due to their age in accordance with normal procedures. As a result, appellant contends that he is prevented from contesting probable cause supporting the warrants. He alleges that none of the seized articles can be shown by the Commonwealth to be within the “four corners” of the written affidavits which are required to evidence probable cause supporting the warrants. Thus, he argues that the evidence seized is inadmissible. Pa.R.Crim.P. 2003; Commonwealth v. Cross, 508 Pa. 322, 496 A.2d 1144 (1985); Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980).

We find that the Commonwealth did not need a warrant for the shirt, the boots, or the knife found in appellant’s automobile. The record establishes that appellant voluntarily consented to his wife’s delivery of his shirt and boots to the police and to the search of his automobile, claiming that he had nothing to hide. This is a valid consensual search. See Commonwealth v. Markman, 320 Pa.Super. 304, 467 A.2d 336 (1983). Furthermore, the seizure of the knife in the automobile and the identification of the exterior of the automobile by witnesses clearly are permitted under the “plain view” doctrine. Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978); Commonwealth v. Grabowski, 306 Pa.Super. 483, 452 A.2d 827 (1982).

Next, testimony revealed that a warrant had been issued by District Justice Calobrese, a neutral magistrate, for the search of appellant’s home. This resulted in the seizure of a different knife and a pair of trousers from appellant’s home. The Commonwealth contends that appraisal by a neutral magistrate places these items under the good-faith exception to the exclusionary rule. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (search pursuant to a warrant issued by a neutral magistrate normally suffices to indicate that the law enforcement officer acted in objective good faith). In Commonwealth v. Edmunds, 373 Pa.Super. 384, 541 A.2d 368 (1988), petition for allowance of appeal granted, 520 Pa. 595, 552 A.2d 250 (1989), we determined that the exclusionary rule in Pennsylvania is no more extensive than the federal constitutional rule, and therefore the good-faith exception to the exclusionary rule is valid. We conclude that the good-faith exception applies herein to both warrants since neutral magistrates presumably issued the absent search warrants based on probable cause.

Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989), relied upon by appellant, is distinguishable. In that case probable cause to wiretap never was considered. Instead, we find Edmunds controlling in this case, and therefore conclude that the knife and trousers obtained from the search of appellant’s house properly were admitted at trial.

Further, as to the legality of the seizure of the burned fragments of clothing, we conclude that appellant has no standing to contest the legality of the search, which occurred on his father’s land. In order to have standing, appellant must demonstrate one of the following: 1) that he was present on the premises at a time of the search; 2) that he had a possessory interest in the evidence improperly seized; 3) that possession was an essential element of the prosecution’s case; or 4) that he had a proprietary interest in the premises searched. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986). Here, appellant voluntarily abandoned the clothing by burning it on his father’s property, where he had no proprietary interest. See Commonwealth v. Cihylik, 337 Pa.Super. 221, 486 A.2d 987 (1985). Additionally, he was not present at the time of the search, nor is possession of the articles an essential element of the Commonwealth’s case. Therefore, appellant has no standing to challenge the legality of the seizure of these items.

Appellant’s next argument is that the trial court improperly admitted testimony by Officer Hannon regarding identification of appellant by the victim’s playmate, Thomas Levis. Appellant contends that the line-up leading to this identification was suggestive and that the testimony was an out-of-court statement admitted in violation of the hearsay rule. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1977) (unnecessarily suggestive pre-trial identification violates due process); Commonwealth v. Floyd, 327 Pa.Super. 569, 476 A.2d 414 (1984) (pre-trial identification is not an exception to the general prohibition against hearsay evidence and therefore inadmissible).

Testimony by Chief Dever revealed that during the identification at least five white males, none in uniform, were in the room, and several were close in age and build to appellant. Officer Hannon testified that Thomas Levis never hesitated in identifying appellant, except to say that his hair was lighter in color and that he had shaved. Appellant admitted to obtaining a shave and haircut between the time of the murder and the time of the boy’s identification.

Suggestiveness in an identification procedure can be determined from the totality of circumstances, which is analyzed by reviewing the opportunity of the witness to view the perpetrator during the crime, the accuracy of his description, the certainty that he demonstrated at the time of the identification, any prior misidentification, and the manner in which the identification was conducted. Commonwealth v. Thompkins, 311 Pa.Super. 357, 457 A.2d 925 (1983) .

The witness, although only six years old, clearly saw the perpetrator closely, in daylight, and accurately described him. Shortly thereafter, he identified appellant in a line-up of white men, substantially of the same age, and with essentially the same build. The boy positively identified appellant, even noting that he had shaved and had lighter color hair. We conclude from the totality of the circumstances that this identification was not suggestive or in violation of appellant’s due process rights.

The trial testimony revealed that Thomas Levis positively identified appellant in the lineup, when he was six years old, but could not do so as an adult, at trial. His prior, inconsistent statement identifying appellant was admitted as substantive evidence. Appellant argues that Commonwealth v. Floyd, 327 Pa.Super. 569, 476 A.2d 414 (1984), is dispositive on the hearsay issue. In Floyd we held that prior inconsistent statements could not be admitted as substantive evidence. The supreme court subsequently clarified that prior inconsistent statements by a non-party are admissible as substantive evidence where circumstances establish their reliability. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). We conclude that the instant identification statement, made shortly after the crime, has been demonstrated to be sufficiently reliable to be admissible as substantive evidence. Id.

Appellant next contests the admission of testimony relative to Thomas Levis’s identification of appellant from a photographic array. Appellant contends that the Commonwealth must reproduce the original array so that he effectively may attack the credibility of the witness identifying him, otherwise he is denied due process. Commonwealth v. Jackson, 227 Pa.Super 1, 323 A.2d 799 (1974). Appellant further alleges that the array was suggestive since appellant’s photograph was one from only three or four loose photographs in the photo albums used. He therefore contends the array was suggestive in violation of his due process rights. Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976).

The Commonwealth’s argument on this issue is persuasive. First, appellant was not a suspect in custody but had agreed to questioning. Therefore, Commonwealth v. Jackson, supra, and Commonwealth v. Fowler, supra, cited by appellant as requiring reproduction of the array when a suspect is in custody, do not apply. Second, Commonwealth v. Harris, 368 Pa.Super. 84, 533 A.2d 727 (1987), in which the identification was admitted although the exact array also was not reproduced, is pertinent. In Harris, the prosecution presented the photograph of the defendant together with evidence of the number, nature, and characteristics of the photographs used in the array, but did not produce the actual array. There, the identification was admitted where it was revealed that there were approximately forty photographs in black and white, all photographs were of white males, and they all were the same size. See also Commonwealth v. Flynn, 314 Pa.Super. 162, 460 A.2d 816 (1983) (identification upheld when only sixteen of twenty-five original photographs were reproduced); Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984) (identification upheld with only eighteen of five hundred photographs reproduced).

Instantly, the Commonwealth did produce the original two photograph albums used. They were books containing essentially the same photographs viewed by Thomas Levis. Thomas Levis positively identified appellant after looking at only seven or eight photographs. Furthermore, Levis had a good opportunity to observe appellant. Consequently, we find enough evidence of reliability to conclude that the trial court properly admitted the testimony. Commonwealth v. Thompkins, supra, and Commonwealth v. Jackson, supra, relied upon by appellant, are distinguishable since in those cases the prosecution presented no record of the array.

Appellant’s next argument is that the trial court improperly denied his motion for a change of venue. Appellant argues that Erie County has a population of less than three hundred thousand people and that the case was publicized widely in print, radio, and television media. Appellant alleges that he was prejudiced by emotional references to the slaying, his past criminal record, and references to an alleged confession. He therefore argues that a fair trial could not be held in Erie County and that a change of venue should have been granted. See Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971).

The grant or refusal of a change of venue is within the sound discretion of the trial court, which is in the best position to assess the community feeling, and it will not be disturbed absent an abuse of discretion. Commonwealth v. Tedford, 523 Pa. 305, 323, 567 A.2d 610, 618 (1989); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). In Commonwealth v. Kichline, 468 Pa. 265, 274, 361 A.2d 282, 287 (1975), the supreme court stated that “[i]n reviewing the trial court’s decision, the only legitimate inquiry is whether any juror formed a fixed opinion of appellant’s guilt or innocence as a result of the pre-trial publicity.” In Commonwealth v. Casper, 481 Pa. 143, 151-52, 392 A.2d 287, 291-92 (1978), the court stated, “It is clear that the mere existence of pre-trial publicity does not warrant a presumption of prejudice. Similarly, a possibility that prospective jurors will have formed an opinion based on news accounts will not suffice.” Nevertheless, there are times when pretrial publicity is so pervasive and inflammatory that the accused is relieved of establishing actual juror prejudice.

Pre-trial prejudice is presumed if: (1) the publicity is sensational, inflammatory, and slanted towards conviction rather than factual and objective; (2) the publicity reveals the accused’s prior criminal record, if any, or if it refers to confessions, admissions, or reenactments of the crime by the accused; and (3) the publicity is derived from police and prosecuting officer reports.

Commonwealth v. Pursell, 508 Pa. 212, 221, 495 A.2d 183, 187 (1985) (emphasis added).

Instantly, individual voir dire was conducted and all jurors indicated that they had not formed a fixed opinion in the case and could apply the law as instructed. The-pretrial publicity, while allegedly extensive, was not included in the record. Appellant merely appended copies of newspaper articles to his brief. Accordingly, this argument is waived. Pa.R.A.P.1921. See also Auman v. Juchniewitz, 312 Pa.Super. 98, 458 A.2d 254 (1983); Commonwealth v. Stanton, 294 Pa.Super. 516, 440 A.2d 585 (1982) (appellate court may consider only facts which have been duly certified in the record on appeal). Even if this argument were not waived, we find that these articles are not inflammatory or sensational and made only a passing reference to appellant’s prior criminal record. Later articles do mention that he stated his intention to confess to Reverend Dickson, but also note that he never actually made any confession to the crime.

We note that these articles predate the trial in excess of one and one-half years, a sufficient time for a “cooling down” period. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976) (six months is sufficient “cooling down” period after prejudicial pretrial publicity). Furthermore, much of the testimony was generated by defense counsel rather than police reports. We therefore conclude that the trial court properly determined that a change of venue was not warranted.

Appellant’s next argument is that the trial court erred by admitting appellant’s prior criminal record for indecent exposure. Commonwealth v. Turner, 454 Pa. 439, 311 A.2d 899 (1973). He argues that this error served to prejudice the jury against him and strip him of the presumption of innocence. See Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975) (evidence of distinct crimes is limited to establishing a common plan, scheme, or design so related that one crime proves identity of the perpetrator of another).

The Commonwealth responds that evidence of a distinct crime may be introduced at the discretion of the trial court for the limited purpose of establishing motive. Commonwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178 (1988); Commonwealth v. Bricker, 378 Pa.Super. 265, 548 A.2d 604 (1988). The Commonwealth’s contention is that the prior sex crimes serve to establish the motive of appellant to be with the victim and to silence her rather than to risk going to jail if he were caught again. In Commonwealth v. Duffey, supra, 519 Pa. at 367, 548 A.2d at 1187, our supreme court stated:

It is equally clear that evidence of other crimes is admissible where it is relevant to prove motive or intent. [Commonwealth v. Styles, 494 Pa. 524, 525, 431 A.2d 978, 980 (1981) ]; Commonwealth v. Brown, 489 Pa 285, 414 A.2d 70 (1980); Commonwealth v. Martin, [479 Pa. 63, 387 A.2d 835 (1978)]. When evidence is admissible for a limited purpose a defendant is entitled to a limiting instruction. Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841 (1977).

The trial court instructed the jury to consider appellant’s two prior offenses for the sole purpose of indicating his motive to commit the crime and not as evidence that he was the one who committed the murder. No details of the prior crimes were admitted. In these circumstances, we do not find error.

Appellant next raises two arguments concerning the trial court’s exclusion of evidence and testimony in his behalf. First, he contends that the trial court improperly denied him the opportunity to admit an old photograph to show that he had light hair at the time of the murder. The trial court was prepared to admit this photograph, but only on the condition that the Commonwealth be permitted to admit a photograph of appellant with dark hair to refute it. Appellant declined this option on the basis that the Commonwealth’s photograph was a “mug” shot. Appellant argues that he has a right to present evidence in his defense, without any stipulations, so long as it is relevant and not excluded by an established evidentiary rule. Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661 (1977). Consequently, he asserts the trial court abused its discretion in imposing this requirement.

It is well-settled that the admission of a photograph is within the sound discretion of the trial court and will be reversed only for an abuse of that discretion. Commonwealth v. McCutchen, 499 Pa. 597, 454 A.2d 547 (1982); Commonwealth v. Petrakovitch, 459 Pa. 511, 329 A.2d 844 (1974). The trial court attempted to balance the demands of both parties in imposing this condition. Appellant elected not to introduce his photograph and does not allege that the Commonwealth possessed photographs other than the “mug” shot to show that he had dark hair at the time of the crime. In these circumstances, we do not conclude the trial court abused its discretion.

Appellant contends that the trial court prevented him from calling numerous expert witnesses to testify that the failure to obtain the following evidence, which should have been secured at the time of the crime, reduced the implication that he murdered the victim: (1) no attempt to remove a fingerprint from the toy badge ever was made; (2) appellant’s cowboy boots were not soiled when they should have been due to the soil conditions at the crime scene; and (3) the twenty-two year old recollection of a six-year-old child inherently is unreliable. In addition, the trial court disallowed testimony concerning the average number of summer campers in a camp near the murder scene and testimony that stories about the murder were not published in Conneaut, [Ohio], as testified to by Reverend Dickson.

Rulings on the relevancy of proper evidence rest within the sound discretion of the trial court. Commonwealth v. Costanzo, 269 Pa.Super. 413, 410 A.2d 324 (1980). Instantly, the fingerprint expert’s testimony regarding the failure to obtain a fingerprint was deemed speculative, conjectural, and lacking a reasonable degree of scientific certainty. The soil expert’s testimony was ruled irrelevant since the Commonwealth never argued that the particular cowboy boots introduced were those worn during the murder. A child psychologist and a memory expert were excluded since their testimony improperly would have impinged on the jury’s determination of credibility in light of the fact that Thomas Levis’s memory previously was assailed on cross-examination by defense counsel. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976). Furthermore, testimony regarding the average number of campers in the immediate area was excluded on the basis that the witness could testify only to the average number of campers generally and not to the average number during the summer of the murder. The average number of campers generally was deemed irrelevant to the summer of the murder. Finally, the record clearly demonstrates that Reverend Dickson testified that he recalled reading the news story while visiting Conneaut Lake, Pennsylvania, and not Conneaut, Ohio. We find no error in any of these rulings.

Appellant’s final argument is that the trial court erred by refusing to recuse itself on the following grounds: (1) the trial judge had been a prosecuting attorney with the district attorney’s office when the case was an open file; (2) the prosecuting attorney had been involved actively in the trial judge’s judicial election campaign; (3) the prosecuting attorney and the trial judge were social acquaintances; (4) the assistant prosecutor was the trial judge’s former law clerk; and (5) the trial judge’s tipstaff was the mother of the assistant prosecutor. Appellant contends the tipstaff had the opportunity to influence the jury, when no potential improper influence should interfere with the jury’s impartial determination. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (the proper function of a jury is to be impartial and prevent prejudice from an overzealous prosecutor or biased judge). Appellant maintains that these improprieties violated his right to an impartial tribunal. Commonwealth v. Fields, 231 Pa.Super. 238, 331 A.2d 494 (1974) (improper information may prejudice fact finders).

We find these assertions to be devoid of merit. There is absolutely no evidence of any impropriety on the part of the tipstaff in her duties and we refuse to presume any. The trial judge was assigned by the court administrator. The trial judge stated that he had no prior knowledge of the case stemming from his employment in the district attorney’s office. He further determined that he could be impartial despite his association with the prosecutors. Such a determination by the trial judge will stand absent an abuse of discretion. Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985). Our independent and thorough review of the record convinces us that the trial court unfailingly was fair and impartial. Therefore, we find no abuse of discretion.

Judgment of sentence affirmed.

      . 42 Pa.C.S. § 5943 provides (emphasis added):
      No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person, secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.


author: HESTER, Judge.

text:
    572 A.2d 1270
    In re Irvin H. STEINSAPIR, Deed of Trust. Appeal of Samuel HOROVITZ, Melvin L. Mallit, Lewis Silverboard and Albert C. Shapira, being all of the Trustees of Julius L. and Libbie B. Steinsapir Family Foundation, Acting in their Representative Capacity on Behalf of said Foundation, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1990.
    Filed April 6, 1990.

      Albert C. Shapira, Pittsburgh, for appellants.
    Jan I. Medoff, Pittsburgh, for participating parties.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   HESTER, Judge.

In this appeal from a final orphans’ court decree, we address whether a trust instrument was amended in accordance with its express provisions. We conclude that the instrument was not amended properly and that appellee, Bernard A. Steinberg, has no right to serve as trustee of the Julius L. and Libbie B. Steinsapir Family Foundation (“Foundation”). We reverse.

Appellee instituted this action for declaratory judgment by petition to the Orphans’ Court Division of the Court of Common Pleas of Allegheny County, requesting the court to order him to be seated as trustee of the Foundation. Respondents-appellants, who are the acting trustees of the Foundation, filed their answer to the petition. Thereafter, the orphans’ court decided the matter on the pleadings. There are no factual disputes in this action.

Irvin H. Steinsapir, now deceased, created the Foundation for charitable purposes under a declaration of trust and trust agreement dated September 19, 1968. He named himself, Julius Steinberg, and four other individuals as the initial trustees. The trust contains two provisions that are relevant to our determination. The first, paragraph 8, relating to appointment of trustees in the event of a vacancy in the board, provides as follows:

Any vacancy occurring among the six Trustees named herein occasioned by death, resignation, refusal or inability to serve, or in any other manner, shall, at the discretion of the remaining Trustee or Trustees, be filled by the remaining Trustee or Trustees; except that, whenever the number of remaining Trustees is less than three, a vacancy or vacancies shall be filled to bring the number of Trustees to at least three. The remaining Trustee or Trustees may designate a Trust Company to fill a vacancy. In the event that the remaining Trustee or Trustees fail to act within three (3) months after the number of Trustees has dropped to less than three, the vacancy or vacancies shall be filled by the Orphans’ Court of Allegheny County to bring the number of Trustees to three, upon application by any of the remaining Trustees. All successor Trustees shall have the same powers and discretions as the original Trustees named herein.

Thus, the trust agreement provides for post-vacancy selection of trustees by the remaining trustees. The other relevant provision, paragraph 12, relates to amendment of the trust following the death of the settlor:

The provisions of this agreement may be modified or supplemented in such respects only as may be necessary or advisable in order to effectuate a more convenient or efficient administration, or to enable it to qualify as an organization exempt from federal income taxes, the contributions to which may be deducted by the contributors for federal income tax purposes, and bequest to which shall be deductible for federal estate tax purposes. Such modifications shall be evidenced by a written instrument executed by the Donor, if alive at the time, and the Trustees____

(Emphasis added).

On June 5, 1985, the board of trustees held a meeting wherein they decided to pre-select their own replacements. The minutes of the meeting, a copy of which was attached to the petition, indicates the following. One of the trustees reported on a seminar for tax-exempt organizations that he had attended. At the seminar he had learned that “[trustees of a private charitable foundation who have the authority to do so under the by-laws, may provide that each Trustee may designate his successor in the event of death or incompetency.” Reproduced Record at 14a (emphasis added). Without examining whether they had the power to do so under the trust agreement, each trustee designated a successor for himself. At the meeting, appellee was named as successor trustee to Julius Steinberg. Appellee instituted this action to enforce his right to act as trustee when appellants refused to seat him following Julius’s death.

The orphans’ court granted appellee’s petition and seated him as trustee in the Foundation.. The decision rests on two legal conclusions. First, the June 5, 1985 resolution naming successors to each trustee operated as a modification of the trust agreement under the terms of paragraph 12. Second, promissory estoppel prevented appellants from refusing to seat appellee as trustee since the minutes evidence an exchange of promises by the trustees to seat each trustee’s named successor. The orphans’ court reasoned that since Julius Steinberg relied upon the promise of the remaining trustees to seat his named successor by refraining from attempting to effectuate his wish by other legal means, promissory estoppel prevented appellants from refusing to seat appellee, who is the third party beneficiary of the exchange of promises.

Following the filing of exceptions, the orphans’ court en banc affirmed in an equally divided decision. This timely appeal followed. We reverse, finding the well-reasoned opinion of the dissenting members of the court en banc persuasive on the issues presented.

Initially, we discuss our standard of review. As there were no factual determinations made in this case, we are reviewing legal conclusions and interpretation of a trust instrument. Legal conclusions are reviewable freely by the appellate courts. Presbytery of Beaver-Butler v. Middlesex, 507 Pa. 255, 266, 489 A.2d 1317, 1323 (1985); McKeesport Beer Distributors, Inc. v. All Brand Importers, Inc., 390 Pa.Super. 627, 630-632, 569 A.2d 951, 953 (1990).

We first consider whether the minutes of the June 5, 1985 meeting can be viewed as an effective modification of the trust agreement as provided in paragraph 12. Some basic trust principles are relevant to this determination. First, it is axiomatic that a trust agreement may be modified only by strict adherence to its express provisions. In re Trust of Kaufmann, 460 Pa. 24, 331 A.2d 209 (1975).

In Kaufmann, the supreme court held that where a trust agreement provided that amendments by the settlor were effective only if delivered to the trustees, any amendment could not be effective unless actually delivered to the trustees, regardless of the intent of the settlor when he executed the trust amendment. Specifically, the court stated that “Pennsylvania and general trust law clearly provide that a revocable or amendable trust can only be revoked or amended in accordance with the terms of the trust.” Id. at 28, 331 A.2d at 211. It further advised that evidence of the settlor’s “intention to effectuate the proposed amendment cannot be introduced to explain or supercede the unambiguous requirements of the trust agreement.” Id. at 29, 331 A.2d at 211-12 (footnote omitted).

Another trust principle relevant to this case is that the power to appoint trustees is to be strictly construed, and where the settlor has given the power of post-vacancy selection to the board, such power will be erased only reluctantly. In re Estate of Trimble, 383 Pa. 443, 119 A.2d 51 (1956); In re Boning’s Estate, 214 Pa. 19, 63 A. 296 (1906); see also Restatement (Second) of Trusts § 108, comment f (power to appoint trustees conferred by the terms of the trust can be exercised only under the circumstances and in manner detailed in the trust).

In the present case, the resolution which appellee suggests modified the trust so as to abolish post-vacancy selection fails to meet two requirements of paragraph 12. First, amendments under the paragraph may be made only upon a determination that the amendment improves the. administration of the trust. The minutes do not indicate why pre-vacancy selection of a successor by the trustees is better for trust administration. Paragraph 12 clearly states that amendments may be made only if they are more convenient or efficient to trust administration.

Here, the trustees never considered whether the proposed amendment would serve to improve administration of the trust. Thus, regardless of whether the trustees intended to modify the trust, they failed to fulfill the settlor’s requirement that an amendment may be made only if determined to be in the best interests of trust administration. See Estate of Trimble, supra (courts must give full effect to settlor’s intent as expressed in the wording of the trust); see also Restatement (Second) of Trusts § 186, comment g (if trust provides that trustee may perform an act only upon the happening of a certain event, the trustee cannot perform act properly unless the event occurs).

Appellee asks us to graft a determination that pre-vacancy selection of successor trustees improves trust administration onto the discussion contained in the minutes of the June 5, 1985 meeting. He suggests that pre-vacancy selection is more efficient since it eliminates all temporary vacancies in the board of trustees. It would be improper for us to ex post facto engraft a determination required by the trust agreement prior to amendment when the trustees failed to do it.

Furthermore, we find flawed appellee’s position that this trust’s administration is improved by pre-vacancy selection. Our review of the trust agreement convinces us that a temporary vacancy on the board would not interrupt operations since the board is large and the settlor adequately provided for temporary vacancies. In fact, as this litigation demonstrates, pre-vacancy selection has interfered significantly with the operation of the trust. This case provides the very illustration to disprove the conclusion that for purposes of this trust, pre-vacancy selection of trustees is more efficient.

The post-vacancy selection procedure adopted by the settlor prevents discord among the trustees by ensuring that they unanimously select someone who is compatible. By seating appellee against the unanimous wishes of the current trustees of the Foundation, the orphans’ court has created an antagonistic situation which is intolerable. If we sustain appellee’s appointment to the board, future meetings will be marred by discord and rejection of appellee’s input, and the trust will be left with the commensurate loss of input from the trustee who would be seated instead of appellee.

In re Zerbey’s Estate, 356 Pa. 2, 50 A.2d 681 (1947), provides guidance in this respect. On the basis of the orphans’ court opinion, the supreme court affirmed that court’s decree dismissing exceptions to the appointment of a trustee and refusing to seat the exceptant, who was a beneficiary of the trust, as trustee. The orphans’ court offered, among others, one significant reason for refusing to appoint the exceptant: potential interference with smooth operation of the board of trustees. The orphans’ court in Zerbey’s Estate noted that by the exceptant’s own admission, her appointment would create disharmony on the board. It determined that “we should not and will not pursue a course which is not for the best interests of the trusts or which will create disharmony in the board of trustees.” Id,., 356 Pa. at 4, 50 A.2d at 682.

We conclude that a court must consider the potential impact on' an operating board of trustees when it is examining a situation involving appointment of trustees. The orphans’ court in this case should have considered the obvious antagonism toward appellee felt by this board, which so rigorously has fought his appointment. This consideration is particularly significant here since appellee fails to offer any compelling reason, either in terms of his qualifications or in terms of a stated preference of the settlor as to particular type of trustee, why he should be appointed instead of someone who will be compatible with the present board.

We also believe that the minutes fail to conform to the another requirement of paragraph 12. Paragraph 12 requires amendments to be “executed.” It is not disputed that the resolution never was signed by the trustees. Further, no one ever was seated as successor under the resolution. Execution envisions either actual signature by all parties or that the instrument be carried out in some manner. Black’s Law Dictionary defines execution as the carrying out of an act or course of conduct to completion or into operation or effect. Accordingly, we determine that the resolution remained executory at the time of Julius’s death since it was unsigned and since appellee is the first person to attempt to enforce the declarations contained in the resolution. While we might view a resolution which has been acted upon by the board as “executed,” that situation is not before us.

As to the second basis for the orphans’ court decision, promissory estoppel, we reject application of the doctrine in this instance. We are examining a trust, not a contract, and cannot give effect to an amendment which is invalid under the trust agreement by applying a principle of contract law. The trust agreement provides that it can be amended in a given manner, and the amendment does not conform to it. It therefore is ineffective.

The decree is reversed, and appellee’s petition is dismissed. Appellants are directed to fill the vacancy created by the death of Julius Steinberg in accordance with the provisions of paragraph 8 of the trust agreement. Jurisdiction is relinquished.

      . 42 Pa.C.S. § 7535(3) provides in relevant part that any trustee interested in the administration of a trust may bring a declaratory action to have his rights with respect to the trust determined. That section also provides that the court may determine questions regarding the administration of the trust and the construction of the trust instrument.

      . We note that we are hesitant to entertain the suggestion that the minutes and resolution that are at issue in this case could be considered a trust amendment. The minutes and resolution contain none of the following information which normally is contained in a trust amendment: 1) an indication that the document is intended as a trust amendment; 2) identification of the specific trust that is being amended; 3) indication of the number of previous amendments, if any; 5) recitation of the facts necessary to demonstrate that the amendment complies with the requirements for amendment contained in the trust; 6) indication of the precise section of the trust to be amended; 7) specification of how that section is to be amended; and 8) execution by signature and notarized acknowledgement of the persons or entities empowered to amend the trust.


author: BECK, Judge.

text:
    572 A.2d 1275
    MUTUAL BENEFIT INSURANCE COMPANY v. GOSCHENHOPPEN MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1989.
    Filed April 10, 1990.

      Carey B. Fleisher, Red Hill, for appellant.
    Scott E. Lash, Wyomissing, for appellee.
    Before CAVANAUGH, BECK and BROSKY, JJ.
   BECK, Judge.

The issue is whether the seller’s property insurer may recover a pro rata contribution from the buyer’s property insurer where the insured real estate was damaged by fire after the signing of the agreement of sale but prior to settlement and where the agreement places the risk of loss on the seller. We find that the seller’s insurer is entitled to recover and affirm.

Buyer’s insurer, Goschenhoppen Mutual Insurance Company, (“Goschenhoppen”), appeals from a grant of summary judgment in favor of seller’s insurer, appellee Mutual Benefit Insurance Company (“Mutual Benefit”). The facts of this case are not in dispute. Emma Stepsie (“Seller”) and Neil R. Herne & Associates (“Buyer”) entered into an agreement for the purchase of improved real estate. The agreement of sale placed the risk of fire loss for the period of time between execution of the agreement of sale and closing on the Seller. The Seller carried a fire insurance policy with Mutual Benefit on the property in the amount of sixty-five thousand dollars ($65,000). The Buyer, although not obligated to do so under the agreement of sale, procured an insurance policy from Goschenhoppen covering the property for fire loss in the amount of seventy thousand dollars ($70,000). Both insurance policies contain a statutorily prescribed proration clause, requiring that when other insurance covers the risk of fire loss on the property, the insurer will pay only the proportion of the loss the policy bears to the entire insurance covering the property. The statute provides:

2. Except as provided elsewhere in this section, no insurance company, association or exchange shall issue a policy affording fire insurance, as defined in this section, on property in the Commonwealth, unless such policy contains the following provisions as to such insurance:
Pro rata liability. This company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not.

40 Pa.Stat.Ann. § 636 (Purdon 1971).

The property was damaged by fire, causing a loss of forty-five thousand dollars ($45,000). A dispute between the parties to the agreement of sale ensued. The Buyer filed an action in the court of common pleas seeking specific performance under the agreement. Seller’s insurer, Mutual Benefit, was named a co-defendant in the case, and it paid the entire amount of the loss into court, pending a decision. The matter settled upon the following terms. Seller retained title to the property and received approximately twenty-eight thousand five hundred dollars ($28,500); Buyer received sixteen thousand nine hundred dollars ($16,900).

Prior to settlement, Mutual Benefit filed the instant action seeking to recover a pro rata share of the loss from Goschenhoppen. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of Mutual Benefit in the amount of approximately twenty-three thousand five hundred dollars ($23,500), and denied Goschenhoppen’s motion for summary judgment. Goschenhoppen appeals.

A motion for summary judgment is properly granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035. In reviewing a motion for summary judgment, the appellate court examines the record in the light most favorable to the non-moving party, and will not disturb the trial court’s grant of summary judgment absent an error of law or a manifest abuse of discretion. Young v. Eastern Engineering and Elevator Company, Inc., 381 Pa.Super. 428, 431-34, 554 A.2d 77, 78-79 (1989).

The parties agree that there is no issue of fact to be tried, but disagree as to the trial court’s application of the law. Goschenhoppen contends that the trial court erred for two reasons. First, it argues, Buyer and Seller possess different interests under the agreement of sale. Thus, Goschenhoppen argues that since the parties insured different interests, the statutorily mandated proration clauses in the insurance contracts do not apply. Second, Goschenhoppen urges that the agreement of sale placed the risk of loss on the Seller, making Mutual Benefit responsible for the entire loss. We reject both arguments and affirm the grant of summary judgment.

We consider first whether the proration clauses contained in both insurance policies are applicable in these circumstances. Proration is required only when there are two or more insurance policies covering the same interest, subject matter, and risk. United National Insurance Company v. Philadelphia Gas Works, 221 Pa.Super. 161, 165, 289 A.2d 179, 181 (1972); Insurance Company of North America v. Alberstadt, 383 Pa. 556, 561, 119 A.2d 83, 86, (1956). There is no dispute that the two fire insurance policies here in issue cover the same subject matter and protect against the same risk. This dispute concerns whether the policies cover the same interest.

It is well settled that a fire insurance policy is a personal contract of indemnity and is on the insured’s interest in the property, not the property itself. Christ Gospel Temple v. Liberty Mutual Insurance Company, 273 Pa.Super. 302, 306-9, 417 A.2d 660, 662-3 (1979), cert. denied, 449 U.S. 955, 101 S.Ct. 362, 66 L.Ed.2d 220 (1980). Goschenhoppen argues that a buyer and seller possess different property interests under an agreement of sale. Until the deed is transferred, a seller retains legal title as trustee for a buyer and as security for the balance of the purchase price. A buyer holds equitable title to the property. When the agreement of sale is silent as to which party assumes the risk of loss prior to closing, the common law places this risk on the buyer. If a seller has insurance on the property, the seller can collect the proceeds of the policy, but holds them in trust for the buyer, who is compelled to perform under the agreement of sale. Partrick & Wilkins Co. v. Reliance Ins. Co., 500 Pa. 399, 403, 456 A.2d 1348, 1351 (1983); Zitzelberger v. Salvatore, 312 Pa.Super. 402, 405, 458 A.2d 1021, 1023 (1983); Yannopoulos v. Sophos, 243 Pa.Super. 454, 460, 365 A.2d 1312, 1315 (1976). Thus, even though a seller retains only legal title, he or she can insure the entire property, and can recover the value of the entire loss for the benefit of the buyer. The Pennsylvania Supreme Court has said “[a]n insurance upon a house, effected by the vendor, is a prima facie insurance upon the whole legal and equitable estate,” and not upon what a seller actually possesses, a security interest in the balance of the purchase-money. Dubin Paper Co. v. Insurance Company of North America, 361 Pa. 68, 78, 63 A.2d 85, 90 (1949) (quoting Insurance Company v. Updegraf 21 Pa. 513, 520 (1853)). The Dubin court stated:

... as between the insured and the insurance companies the insured remains the owner of the property until the sale is completed, but as between the vendor and the vendee the vendor holds only legal title and if he receives the proceeds of the insurance policy on his property he holds these as trustee for the buyer. The vendee’s interest was not insured by the [vendor’s insurers]; the vendor’s was.

361 Pa. at 85, 63 A.2d at 94. The Seller clearly had an interest in the entire property at the time of the fire.

A buyer, as equitable owner, also has an interest in the entire property. At the execution of an agreement of sale, the entire beneficial interest in the property passes to a buyer, Yannopoulous, 243 Pa.Super. at 458, 365 A.2d at 1314, and a buyer can insure the full value of the property. This is consistent with the common law rule placing the risk of loss on a buyer. Thus, Buyer and Seller both had an interest in the entire property at the time of the fire.

There is precedent in this jurisdiction for court ordered proration under similar circumstances. In Insurance Company of North America v. Alberstadt, supra, the buyer purchased a house at a sheriff’s sale and immediately insured his interest against fire loss. There was no agreement of sale in this case allocating risk of loss, but the involuntary seller also maintained a fire insurance policy on the premises. Prior to transfer of the deed, the property was damaged by fire. The issue in Alberstadt was whether each insurance company would be required to pay the full value of the loss to the buyer, or only its respective pro rata share. The court found that the policies held by both the buyer and seller covered the same subject matter, interest and risk, and held each insurance company liable for its pro rata share. 383 Pa. at 561-62, 119 A.2d at 86.

We conclude that in this case the Buyer and Seller insured the same interest, subject matter and risk. Thus, the trial judge correctly found that the proration clauses in the insurance policies should apply.

Goschenhoppen offers two cases from the Third Circuit Court of Appeals construing Pennsylvania law in support of the position that there is no identity of interests. Reliance Insurance Co. v. Allstate Indemnity Company, 514 F.Supp. 486 (E.D.Pa.1981), aff'd., 681 F.2d 808 (3d Cir.1982); Vogel v. Northern Assurance Company, 219 F.2d 409 (3d Cir.1955). Both cases hold that a buyer and seller of real estate insure different interests and, therefore, when both insure the property between execution of the agreement of sale and closing there is no double coverage. We decline to follow these cases for three reasons. First, a federal court’s interpretation of Pennsylvania law is not binding on this court. Commonwealth v. Lacey, 344 Pa.Super. 576, 582, 496 A.2d 1256, 1260 (1985). Second, it is our view that the Third Circuit may have erred in finding that the buyer and seller insured different interests in the property subject to an agreement of sale. Neither case follows the teaching of Dubin Paper, that the buyer and the seller have the same interest in the property after execution of the agreement of sale and prior to settlement. Third, there are factual differences in these cases which may have dictated the results. In both Reliance and Vogel the seller purchased insurance on the property after the execution of the agreement of sale. Reliance, 514 F.Supp. at 487; Vogel, 219 F.2d at 411. In the case sub judice, the Seller purchased the insurance policy three years prior to the agreement of sale when the Seller possessed both legal and equitable title to the property. The policy insured the full value of the property, and was simply continued by the Seller after the execution of the agreement of sale.

Goschenhoppen next argues that Mutual Benefit is not entitled to prorate the loss because the agreement of sale expressly places the risk of loss on the Seller, making Mutual Benefit liable for the entire settlement. Again, we disagree. The agreement of sale relieved the Buyer of the responsibility to insure the property until transfer of title, but the Buyer nevertheless insured the property. At the time of the fire, two insurance policies existed covering the same subject matter and interest against the same risk of loss. The terms of the agreement of sale do not alter this fact. The agreement of sale defines the rights of the Buyer and Seller as against each other; it does not change the rights of the Seller’s insurer as against the Buyer’s insurer. See Dubin Paper, 361 Pa. at 92, 63 A.2d at 97. We therefore find that the agreement of sale does not override proration in this case.

We find that the trial court correctly applied the law to the undisputed facts in this case, and affirm the grant of summary judgment.