
    Heffner Estate
    
      Richard S. Harkins, for accountants.
    
      James W. Sutton, Jr., for Commonwealth as Parens Patriae of Charities.
    
      Nancy Rothkopf, for Commonwealth.
    April 22, 1975
   KLEIN, A.J.,

Testator died November 2,1968, and in his will dated October 26, 1968, he directed his residuary estate be held in trust for a period of five years and gave each of four named individuals the right to withdraw $1,000 a year. The reason for filing the present account is the expiration of the five-year period and the consequent termination of the trust. Under the terms of the will, the balance now remaining in the trust is “to be given outright to the Topton Orphans Home in Pennsylvania.”

Because the will was executed only seven days prior to the death of testator, his intestate heirs objected, when the account was first called for audit on March 22, 1974, to payment of the remainder interest to the charity. At that time the case was continued to await the outcome of an appeal in Cavill Estate 459 Pa. 411, 329 A. 2d 503 (1974) pending in the Pennsylvania Supreme Court and involving the constitutionality of section 7(1) of the Act of April 24, 1947, P.L. 89, 20 P.S. §180.7(1), now 20 Pa.C.S. §2507(1), which invalidates testamentary religious or charitable gifts within 30 days of death.

Cavill was decided on December 5, 1974, and held that 20 Pa.C.S. §2507(1) violates the equal protection clause of the Fourteenth Amendment to the United States Constitution, in effect repealing that section of the Probate, Estates and Fiduciaries Code.

The account was again called for audit on April 7, 1975, after all parties in interest, including testator’s intestate heirs, were given full notice that the accountants had changed their position, and, on the basis of the Cavill decision, would request the balance in the trust be awarded to the charity. No one appeared at the audit to object.

The auditing judge is in full agreement with the present position of the accountants and the award herein will so reflect . . .

ORDER

And now, April 22, 1975, the account is confirmed nisi.  