85 Pa. 94 | Pa. | 1877
delivered the opinion of the court, June 26th 1877.
It was not quite accurate to say, as the learned judge below did, that the trust in Mi’s. Fry’s deed might have perished, if it had been determined under Ogden’s Appeal. Ogden’s Appeal has not been impaired by the subsequent cases: Earp’s Appeal, 25 P. F. Smith 119; Ashhurst’s Appeal, 27 Id. 464; Ash’s Appeal, 30 Id. 497, and some others, are plainly distinguishable from both Yarnall’s and Ogden’s Appeals, 20 P. F. Smith 501. The grounds are broad and clearly visible, and were stated in Earp’s Appeal, which the other cases mentioned followed. This distinction has been re-stated in the recent case of Williams’s Appeal, 2 Norris 377. In that case there were two instruments creating several trusts of a very different character, but which the auditor and the court below confounded, one of which was governed by Ogden’s Appeal and similar cases, and the other by Earp’s Appeal and its sequents, and so we held.
Mrs. Fry’s deed is plainly governed by the principles stated in Earp’s Appeal and is quite as easily distinguished from Ogden’s Appeal. The trust created by her was, “to pay over the net rents, issues and profits, interest and income thereof for and during the lifetime of the said Emily L. Fry,” to her appointee or herself,“whether sole or covert,” and “in case of such coverture for her separate use.” Then follows a proviso which gives character to the trust for her life, and show's that it was intended for her protection without regard to coverture, “ provided that such rents, issues and profits, interest and income, shall -not be liable to her debts, contracts or engagements, or the debts, contracts or engagements of her present or any future husband.” Thus she clearly indicated her intention to protect herself against her own acts as well as those of any husband, present or future. A trust for coverture only, falls at the death of the first husband, but this she intended to be carried over to any future husband, and in connection with the provision against her own debts she discovers a plain intention to make the trust for life and not for coverture merely:
Mrs. Fry’s trust for her own life is very similar to that in Ash’s Appeal, in which the same expressions occur, to wit: “whether sole or covert.” Her trust not being for coverture merely, and being equitable and of the income only and for life, was active, and did not fall with the divorce, and therefore could not coalesce with the remainder for her heirs, which was legal. The exclusion of the husband from the descent or succession, in the language defining the persons to take under the intestate law, was therefore an immate
Mrs. Fry’s will, made long before she declared this trust, and not republished, cannot operate as an appointment under her deed. There are some plausible considerations which might be argued to make the will an appointment under the deed of trust, but upon a careful review of the entire subject we think the intention to execute this posterior power cannot be fairly inferred from the antecedent will, without a republication. This subject was discussed in Bingham’s Appeal, 14 P. F. Smith 849.
The decree of the Common Pleas is affirmed, with costs to be paid by the appellants, and the appeal is dismissed.