83 Pa. 45 | Pa. | 1877
delivered the opinion of the court, January 15th 1877.
In passing on the questions in issue here, it has been felt to be the duty of this court to make every intendment the record would permit in favor of the appellant. By her father’s will, the whole of his estate was vested in her, and she was clothed with unlimited discretion in settling the fortunes of his' other children. The exercise by her of this discretion in the provision made for her brother and sister, was disinterested and generous as well as just. Until the unhappy breach in her relations with Mrs. Sproul occurred, the trust appears to have been faithfully administered, and the rights of the eestwis que trust are amply secured by the private estate of which the appellant is possessed.
Governed by this general view, it was believed throughout the argument and in the subsequent consideration of the cause, that the final decision of the master was erroneously based on the facts he found to be established by the evidence. The character of the defendant’s testimony, what was termed “ the spoliation of 'the books of the trust estate,” and her alleged open defiance of the order of the court, were held sufficient to warrant apprehension of danger to the interests in her hands. It would be a very hard rule that would require the character of a party to an angry legal contest to be tried by the results of a long and close examination respecting large and diversified property interests in which intricate details had been involved. The “spoliation of books” Avas the destruction of accounts and memoranda of Avhich duplicates in the possession or reach
It was thought also the evidence did not warrant the finding that the appellant had removed from Pennsylvania. And it is still believed that the purchase and occupation of a house in the city of Washington, without more, would not, even where a man might be the head of a family, be enough to imply the intention of a change of domicile. Multitudes of families not even indirectly connected with the business of the national government, live there for years, and if a profession is not pursued nor a business undertaken, the presumption to be rebutted is that the residence is temporary, and not that it is permanent. Looking into the evidence, however, it is found that there is nothing to show a definite purpose on the part of the defendant to return to Pennsylvania. In her answer she denied that she intended to acquire a new residence, but she stated that she had purchased a farm in West Virginia at the request of her son, to whom she designed to convey it at his majority. She added that she would probably remain in Washington until her son should finish his education. This indicated at least a protracted absence and an indefinite return. The 20th section of the Act of the 14th of June 1836, makes it lawful for the court having jurisdiction to remove a trustee who “ shall have removed from the state or ceased to have a known residence therein for the period of a year or more.” Upon the facts disclosed in the evidence, it cannot be said that there was error to warrant a reversal on this ground in the decision of the master and the decree of the Common Pleas.
It remains to inquire to what extent the decree ought to be carried out. So far as the property dedicated by the appellant to the use and benefit of Mrs. Sproul and her children was subjected to the characteristics of a strict trust, it was within the jurisdiction of
The imposition of the costs on the appellant, even in view of the equities of the case as they were adjusted by the master and the Common Pleas, was by the application of a rule unduly harsh. There had been no breach of trust, no waste, mismanagement or misappropriation of the trust funds, and no such misconduct as to make the suit necessary to protect the interests of the appellees. The appellant had the right to defend herself against the attempt to oust her from the control of the common property, and under all the circumstances surrounding the parties, the costs should have been directed to be paid out of the trust estate.
And now, to wit, 15th January 1877, it is ordered and adjudged that so much of the decree of the Court of Common Pleas as discharged the defendant, Mrs. Caroline E. Bloomer, from the management and control of the lands described in her declaration of trust in which she owned an undivided interest, and so much thereof as directed the payment of the costs before the master and in the Common Pleas, be reversed; and that the said costs be paid out of the estate belonging to the plaintiffs in the defendant’s hands. And it is further ordered and adjudged that the said defendant, Mrs. Caroline E. Bloomer, give bond in a sum to be fixed and with sureties to be approved by the said Court of Common Pleas, conditioned for the faithful discharge of her duties as trustee of the undivided half of the real estate of which she retains control, and for the faithful payment of the rents, issues, profits and proceeds of sale thereof; and that the record be remitted in order that this proceeding may be had. The residue of the decree of the Common Pleas is affirmed, and it is ordered that the costs of this appeal be paid by the appellees.