Appeal of Barger, 100 Pa. 239

Appeal of Barger

100 Pa. 239 | Pa. | 1882

Mr. Justice Mercur

delivered the opinion of the court, October 2d 1882.

*247These four appeals are from the same decree. They were argued together. The main contention is whether W illiam L. Hirst Jr. had a vested interest, continuing after his death, in the income of his father’s estate? William L. Hirst, Sr., died August 30th 1876, leaving a widow and eleven children. William the junior died intestate, March 17th 1880, leaving a son, Edwin, one of the appellants.

After disposing’ of certain specific property, William L. Hirst, Sr., in the fifth article of his will, devised and bequeathed to his wife all the residue of his real and personal estate in trust, to apply one-third the net income to herself during her widowhood, and two-third parts thereof among his children living at the time of his death, each child to have an equal share. ^ In the sixth article, after giving to his wife full and absolute power and authority to sell at any time, and to make title to all his real estate, except two pieces specified, the proceeds to be invested and treated as realty; the testator proceeds, “ and at the expiration of seven years from my death, I hereby authorize and fully empower my said wife, at any time in her discretion, to make j^artition of all my real estate then unsold, to and among my children, (or if any shall die, to their children the parent’s share) according to the proportions named in article fifth.” After giving her power to allot the several shares, and charge such as may be necessary to equalize their values, it proceeds, “the said partition and allotment, so made by declaration under her hand and seal, and acknowledged and recorded, shall vest the estates according to the terms thereof, as fully as if herein devised. And my wife shall, in said partition and declaration, allot to and vest the shares of all my children, except the eldest six, iu herself as trustee of said younger children, upon such trusts as she shall, in said declaration, set forth and establish. And my said wife shall, at that time, or any time thereafter in her discretion, make distribution of all the remainder of my estate, according to the interests and proportions named in said article fifth.” The testator further proceeds, “ and I expressly declare and order that my said wife may, in said declaration and said distribution, make and declare any and all trusts and limitations as she may then deem necessary or proper for the welfare of my children, or any or each of them ; and that until then, no interest in my estate shall vest in them, or either of them, except as provided in said article fifth ; and as to that interest, my said, wife may, in her discretion, retain the w'hole or any part of each child’s projoortion, until said declaration or distribution, and incorporate it therein.” William L. Hirst, Jr., was one of the six elder children.

It is very clear the testator did not intend, that on his death any estate should vest in his son. The property was not given *248to him, but to the wife of the testator in trust. On or after the expiration of seven years from the death of the latter, she was authorized to make partition and allotment among all the children. This partition and allotment then made was to vest the estate in each one to whom a portion was allotted. This language clearly precluded the idea that an estate vested in any child prior to that time. Not only must the seven years have expired, but his wife must have made the distribution, and declared all trusts and limitations that she thought proper. To remove all doubt as to the intention of the testator as to the time any estate should vest in his children, he proceeds- to declare, “ until then, no interest in my estate shall vest in them, or either of them.” The exception referred to the income only. It will be observed, lmwever, that during the seven years there was no express devise of income to the children in the fifth article; but his wife was “ to apply ” the same for their benefit. That, however, was so changed in the sixth article as to leave it discretionary with her, whether to'apply any part of the income within the seven years, or to withhold all of it until the distribution of the corpus of the estate was made, and then incorporate in each child’s proportion the sum thus withheld. When the income arising from any share was so retained, it became a part of the principal, and did not vest until the share of which it formed a part was allotted.

In case of the death of any of the children within the seven years, and consequently before any partition or allotment made, then the portion which the parent otherwise would have received, was to be allotted to, and vested in, the child or children of the one so dying. In such contingency, no interest vested in the child of the testator ; but the estate passed directly from the testator to the grand-child. The fact that the trustee was authorized in her discretion to apply some or all of the income for the benefit of the children, did not vest it in any child, until so applied. . The gift takes effect only in the issue of the dead child, and is, therefore, a substantive gift to the issue: Theobald on Wills 494. The application of income for the benefit of the children, within the seven years, rested solely in the discretion of the trustee. During that time nothing tangible passed to the children on which they could execute a valid mortgage. Perry on Trusts, sections 386a and 386b. The right to the income ceased when the right to acquire the capital was barred : Comfort v. Austen, 12 Simons 218. As then under the dis■cretionary power of the trustee she did retain the undistributed ■income, it did not vest in William L. Hirst, Jr., and his administrator cannot now claim it: Huber’s Appeal, 30 P. F. Smith 348. This view in regard to discretionary powers is not in coniiiet with the statute forbidding perpetuities: Brown v. *249Williamson’s Executors, 12 Casey 338 ; Huber’s Appeal, supra. The appellant, Edwin Do Forrest Hirst, did not take the estate by transmission through his father, William L. Hirst, Jr., but took that which the latter might have acquired, had he lived until the expiration of the seven years: Pleasonton’s Appeal, 3 Out. 363. The appellee presents no equities arising from ignorance of the mortgagor’s holding no vested interest when she took the mortgage. He had previously notified her in writing that “ by the provisions of the will, no interest of any kind whatever vests in myself or in any of the children, until the execution of the deed of distribution, seven years after the death of my father.” She did not take any possession of the property sought to be mortgaged, prior to the death of the mortgagor. The court, therefore, erred in decreeing any portion of the fund to Mary Clark.

The question whether the sums aggregating $5,680.16 should be chargeable to income account or to principal, is not free from difficulty. We cannot agree with the conclusion of the auditing judge, that they were paid exclusively to preserve the capital of tire estate, nor are we able to see that they enured exclusively to the benefit of the income fund. The object of the agreement of April 16th 1879, appears to have been to aid both income and capital. These sums were paid in furtherance of that object. Each, therefore, should bear a share, and it seems to us equitable to divide this gross sum equally between income and principal. Further than this, the assignments of error are not sustained.

The appeal of Anthony A. Hirst, administrator of William L. Hirst, Jr., is dismissed at his costs. As to the several other appellants, the

Decree is reversed, and it is ordered that distribution bo made conformably with this opinion. It is further ordered that the appellants each pay one half of the costs of their respective appeal, and the appellees the other half.