17 Pa. Super. 244 | Pa. Super. Ct. | 1901
Opinion by
The will of Lawrence A. Duffy provided, inter alia: “ Second. I give, devise and bequeath to my beloved wife, Winifred, during her natural life, the use of my interest (which interest is an undivided one half) in the coal and other minerals underlying and contained in the following described land, situate,” etc. By the third paragraph the testator provides: “ I devise and bequeath to my nephew, James L. Lenahan, of the city of Wilkes-Barre Pa., all my estate and interest in the coal and other minerals in the land heretofore described in paragraph 2, absor lutely, his heirs and assigns forever; subject, however, to the life use heretofore stated to my wife, Winifred.” The fourth paragraph is a devise of the residue of the estate to the wife
- The wife then takes the royalties by virtue of the provision made for her in the second paragraph of the will. When she dies the royalties become payable to James L. Lenahan, under the third clause of the will. If there be forfeiture under the contract during the life of the wife, the interest “ in the coal and other minerals ” passes to her for life in the same manner as it would have done had no contract been made by the testator in his lifetime to make his interest productive.
That which the wife takes is but for life. The remainder-man has an interest to see that she does no act to impair the property. Let it be conceded that there is a trust created. No trustee is nominated. The widow herself is her own trustee during her life, and if she can at any time be shown to have done or to intend any act injurious to the remainder interest, she may be required by the eourt to give security to protect such interest. Nowhere in the will is the executor appointed a trustee. There is no fund foi him to conserve. There are no duties for him to perform in respect to the payments to be made to the widow. We think, therefore, that the learned judge of the court below erred to the extent of holding that the executor was a trustee. We are of opinion that no assignment by the exécutou to the widow, of any interest, is necessary, and that payments of the royalties may be made directly to*the widow. We thus reach the same result as the court below in respect to the failure to show a right to the remedy here sought, but base our decree on different ground.
The decree is affirmed.