Appeal of Watson, 125 Pa. 340

Appeal of Watson

125 Pa. 340 | Pa. | 1889

Opinion,

Me. Chief Justice Paxson :

The second assignment raises the only question in this case. It was as follows: “ The learned court erred in not awarding said fund to said claimant, upon the entry of security under the provisions of the act of May 17, 1871.” It requires but a glance at the will of Mary Watson to see that the trust created in favor of the appellant was a special active trusty The trustee is required by the. sixth paragraph of said will to “hold *345and invest the principal sum so received as aforesaid in good real estate securities and keep the same so invested, and from time to time, as the interest, income and profits shall be got in and received, to pay the same over to my said son Mark Watson, during all the term of his natural life, and after the decease of my said son Mark, to pay the principal sum of said one fourth part or share over to the lawful child or children of the said Mark Watson, if more than one, share and share alike; any deceased child leaving lawful issue, such issue to take and receive the part or share his or her parent would have received and taken if living; and in the event of my said son Mark dying in my lifetime, or without leaving any such lawful child or children, or lawful issue of any deceased child or children, then the same to go to or be paid over as hereafter provided in case of a legatee dying in my lifetime.” The appellant claims that this is a dry trust, and upon entering security to protect those in remainder, he is entitled to receive the corpus of the estate, under the provisions of the act of May 17, 1871. Said act is as follows: “ Whenever any personal property, or the increase, profits or dividends thereof, has been or shall hereafter be bequeathed to. any person for life, or for a term of years, or for any other limited period, or upon a condition or contingency, the executor or executors, administrator with the will annexed, or trustee or trustees under such will, as the case may be, shall deliver the property so bequeathed to the person entitled thereto, upon such person giving security in the Orphans’ Court having jurisdiction of the accounts, in such form and amount as, in the judgment of the court, will sufficiently secure the interest of the person or persons entitled in remainder, whenever the same shall accrue or vest in possession ; and any married woman availing herself of the benefits of this act shall have power as a feme sole, to bind her separate estate and property, by any obligation given by her, as security under this act.”

We are very clear that the case in hand does not come within the provisions of this act. It is a perversion of terms to call this a dry trust. If there is anything clear in the will of Mary Watson it is that she never intended the appellant to touch a dollar of the corpus of the estate. The trustee is to invest the trust fund and pay over the income to him for life, *346with remainder over. We are to presume she had good reasons for this provision; she may have intended it as a spendthrift trust. There is no gift to the appellant of the corpus for life, or for any other period. Hence, how is it possible for the court below to award the money to him as “ the person entitled thereto ? ” We do not think this act was intended to destroy active trusts, and to require the courts to hand over such estates to the tenants for life, upon giving security or otherwise. If it was so intended it is the most vicious piece of legislation ever conceived by the mind of man. It is sufficiently objectionable when confined within its proper limits. It was called for by no public need, and was probably nursed into life by some one who had a special end to accomplish, and could only do so by the passage of a general law. It is an act which the courts, and especially the Orphans’ Court, cannot administer with too much care. In cases coming fairly within its provisions it may be enforced. In the case of life estates witli remainders over, there may be instances in which the remaindermen may not be entitled for fifty years or more. In such instances we do not see how anything less than a first mortgage upon property worth at least double its amount, would be adequate security. This was the rule which the writer enforced when a judge of the Orphans’ Court, and it usually resulted in a failure of the application.

The decree is affirmed and the appeal dismissed at the costs of the appellant.