Conrow's Appeal, 3 Pennyp. 356

Conrow's Appeal

3 Pennyp. 356 | Pennsylvania Court of Common Pleas, Philadelphia County | 1883

March 5, 1883.

— -The opinion of the Court was delivered by

Clark, J.:

This contention arises upon a bill in equity, in the nature of a bill of interpleader, filed by William T. Barber, surviving partner of Thornton Conrow, deceased, against Anna Alida and Alfred T. Conrow, surviving children, and Burtis Barber, executor of the last will and testament of said Thornton Conrow, deceased.

The bill recites that Thornton Conrow died on the 15th day of March, 1882, after having made a will, dated July 1st, 1881, which, on the 21st day of March, 1882, was duly admitted to probate, and letters testamentary thereon granted to Burtis Barber by the register of wills of Philadelphia, a copy of which will was annexed to and made part of the bill; that the said decedent left no widow surviving him, but left three children, viz: William H., Anna Alida, and Alfred Thornton, the last named being a minor of fifteen years; that William H. died April 15th, 1882, intestate, unmarried, and without issue ; that the testator at his death was the owner of the premises No. 5 North Water street, in the city of Philadelphia, and the firm of Conrow, Barber & Co., of which the plaintiff was the sole surviving partner, were tenants occupying the said premises at a yearly rental of $1,000, paya*363ble in quarterly installments of $250 each, one of which said payments was due May 1st, 1882 ; that this rent was demanded by the executor, Burtis Barber, on the one hand and by Anna Alida and Alfred Thornton Conrow, the surviving children, on the other, and that, legal proceedings were threatened.

The prayer of the bill was that the said, defendants be ordered to interplead for their respective claims. Joseph I). Conrow was appointed guardian ad litem of Alfred Thornton and made party to the record.

The separate answer of Burtis Barber, Anna Alida and Joseph D. Conrow, guardian aforesaid, admitted the facts stated in the bill; the respondents maintained their respective claims, and submitted themselves to the order and decree of the Court; thus the issue was framed.

The following is a copy of the last will and testament of Thornton Conrow, deceased; and the only questions, submitted arise upon its proper construction. (His Honor here read the will.)

There can be no doubt but that the several devises made in the 9th, 10th, and 11th items of the last will and testament of Thornton Conrow, deceased,, created estates in fee, in the devisees therein named respectively. The word “heirs” is presumptively a word of limitation, and not of purchase, and we are of opinion that there is no sufficient evidence, found in the will, of the testator’s intent to deviate from the general rule ; indeed, the evidence is rather corroborative of the legal presumption, and tends to establish that it was the testator’s actual purpose to devise the fee; he probably intended what he expressly directed, that at the decease of all or either of his children, the lands devised to them should descend to their respective heirs and legal representatives. '

Certainly, the paramount and general intent of the testator, as shown by the entire will, is, that the heirs are to take qua heirs ; therefore, they take by desceñe, and the inheritance must, under the rule, vest in the ancestor. And although, in a subsequent clause, he provides that the lands referred to are given to his said children during their natural lives, and not to be sold or disposed of by them, this particular intent must necessarily be subordinated to the general and controlling principle of his will: Physick’s Appeal, 14 Wright, 136 ; Doebler’s Appeal, 14 Smith, 17. A general restraint upon the right of alienation is void, and that clause of the will should be disregarded: Criswell’s Appeal, 5 Wright, 288 ; Naglee’s Appeal, 33 Penn. St., 89, Jauretche v. Proctor, 48 Penn. *364St., 466. Are the lands described in Items 9, 10 and 11 of the will embraced in this trust? If they are, then the estate of the testator must remain in the control of the executor under the trust “-until the final settlement,” and the accruing rents are properly payable to the executors as trustees; if not, the rents are payable to the appellants ; this is the main question in the cause. The trust thus created is undoubtedly an active one, embracing the full temporary management and control of a large part, at least, of his estate, the sale and conveyance of the “residue” of his realty at the discretion of his trustees, the disposal of his personalty, the payment of annuities, contingent legacies, debts and incumbrances out of the “joint” or residuary estate, and the support and education of his children; the trust being thus active, and subsisting in the executors, we are required to consider its extent. The general and paramount intent of the testator, as we gather it from the body of the will, seems to be that the distribution of his estate should not take place until his son, Alfred Thornton, should arrive at the age of twenty-five years. The testator is everywhere throughout the will emphatic and precise upon this particular. He refers to this “settlement” some fifteen or more times in the several clauses of the instrument, designating the time either as “ the time of the final settlement,” or “the time when Alfred Thornton shall arrive at the age of twenty-five years;” it is clear that the will was only to have its full effect then. It is also worthy of remark that, whilst this will is drawn in consecutive paragraphs, each of which contains a distinct and separate provision, at the close of item 12, which has for its proper subject the nature and extent of the estate devised in Items 9, 10, and 11, the testator concludes, as if the remark had some significance in that place, “ the final settlement is to be made when my son Alfred T. arrives at the age of twenty-five years, ” &c., &c.

In Item 12 he reserves to William Henry the right to sell the Love farm, described in Item 9. In Items 15 and 16 he directs that the Longwood farm and the W est Virginia lands shall not be sold or conveyed until Alfred Thornton shall arrive at the age of twenty-five years, and the authority to the executors subsequently given is thus limited.

The devise to his executors, as trustees in the 18th item, is of “ all my estate, real, personal, or mixed, whatsoever and wheresoever, in trust, for the purpose herein specified, and subject to the limitations and reservations in items be*365fore m entioned. ” It is contended that the ‘ ‘ limitations and reservations” to which the devise in trust is subject are the previous devises in Items 9, 10, and 11, and that they are not therefore embraced in the trust. We do not think so, as those devises could not, in any sense, be termed “limitations” or “reservations,” as, however, in previous clauses of his will he had reserved out of the trust a right t'o William Henry to sell the Love farm, and limited the power of his trustees in the sale of specific portions of his estate, we infer these limitations and reservations to have been intended, subject to which the trust certainly was intended to be. It is observable that the writer of this will, although defective in orthography, possessed some knowledge of legal phraseology and of the meaning and use of technical words, and it is highly probable that the words “reservations” and “limitations” were rightly applied, especially as there were proper subjects in the body of the will to which they were strictly applicable. The testator certainly created an estate in fee to his children in Items 9,10,11, and 12, and the only effect of the language used in Item 18 is to postpone the time when the fee may take effect in possession. It is one plain duty in construing a will to harmonizeits provisions throughout, if that construction is reasonably within the probable intent of the testator; and if the will is equally susceptible of two different constructions, that is to be preferred which reconciles its different provisions, and brings them into some consistent plan of disposition. To give the words used in Items 9,10, and 11, the effect claimed for them by the appellants is to defeat the force of the language used in Item 18. Whilst to give the latter its proper effect, in no way defeats the estate created in the previous clauses, but simply fixed a time when they shall come into the possession and control of the devisees. The intention of the testator is not to be gathered from the terms of a particular devise, the construction must be that which is consistent with the whole scheme of the will, and particular expressions that would stand in the way of the general intent of the testator are to be construe"d in subordination to it or disregarded: Middleswarth v. Blackmore, 74 Penn. St., 414; Loebler’s Appeal, 64 Penn. St., 9 ; Schotts’ Estate, 78 Penn. St., 40; Reek’s Appeal, 78 Penn. St., 432.

The testator, claiming the light to dispose of his property according to his own judgment and discretion, was determined that the disposition which he had made would be accepted by those beneficially interested without objection, and hence, in Item 17, he imposed in terrorem a *366penalty upon any of Ms beneficiaries who might take, legal proceedings against it. Having thus provided, he says : “For this purpose of my will, I, Thornton Conrow, do hereby give, devise, and bequeath unto my executors,” &c., &c. If the creation of the trust was in part “for this purpose” of his will, it was manifestly his purpose to embrace in the trust the devises made to those who could,, of course, be the only possible contestants of his will. He provides for the maintenance and education of his children by directing the trustees to “advance” such sums of money as may be required for that purpose, and that such advances, with interest thereon, shall be a charge upon each share or legacy, &c., thus recognizing the fact that they had no available means of maintenance or support outside the trust. Nor was the trust thus created in violation of the act of April 18,1853, providing against trusts for accumulations after the majority of the persons entitled. Such was not the purpose or intent of the testator, nor the effect of upholding the trust; there were debts to pay, incumbrances to remove, and advances to make for the maintenance and education of the children and all the income may be needed for this support and education. At all events, it is quite sufficient for the, present to say that the act referred to forbidding trusts for accumulation by its express terms does, not avoid such trusts in toto, but only for the excess beyond the statutory period: Purdon’s Digest, Vol. 2, p. 1245 ; Brown v. Williamson’s Executors, 12 Casey, 338. Alfred Thornton being still in his minority, the act could not, by any construction, be held to defeat this trust.

We are, therefore, of opinion that the premises No. 5 North Water street, in the city of Philadelphia, devised to William Henry Conrow, were devised to him in fee, but, that by the creation of the temporary trust in the executors, the time of its enjoyment in possession was postponed to take effect when Alfred Thornton Conrow should arrive at the age of twenty-five years, that this was an active subsisting trust, and was not contrary to the act of April 18, 1853, providing against trusts for accumulation.

Therefore, the decree is affirmed, and the appeal dismissed at the costs of the appellants.