Estate of Fetherman

181 Pa. 349 | Pa. | 1897

Opinion by

Mr. Chief Justice Stbbbett,

This appeal of Harriet E. Fetherman, executrix, etc. of Peter H. Fetherman, deceased, from tbe decree discharging her rule to show cause, etc., involves the construction of the will of Charles Fetherman, the father of appellant’s late husband.

After providing for the payment of debts, etc., Charles Fetherman, in the second item of his will, gave all his property, real, personal and mixed, to his six children, by name (one of whom was his son Peter H.) “ share and share alike.”

In a subsequent item, he provided for a public or private sale, by bis executoi, of all the real estate of which he died seized.

In the third item he created, as to his son Peter’s share or interest in his estate, an active, special trust, etc. in the words following:

“ Item. I hereby direct that the share of my estate devised and bequeathed to my son Peter H. Fetherman shall be paid to a trustee to be appointed by the orphans’ court, .... and the said trustee, having fully qualified, shall put and place the said share out at interest on good real security, or in the funded debt of the United States or of the state of Pennsylvania, or such other security as may be deemed sufficient by the said orphans’ court, and shall pay over the interest or dividends thereof, from time to time, when the same shall be received, to my son Peter H. Fetherman, during his natural life, free from his debts, contracts or engagements; and, from and after his decease, then, as to the principal, in trust to and for the only proper use and benefit of all and every child and children by his first wife which he my said son Peter H. Fetherman may leave and the lawful issue of any of them who may then be deceased, having left such issue, to be equally divided between them share and share alike, such issue of any deceased child or children of my said son Peter taking, however, only such part or share thereof as his, her or their deceased parent or parents would have taken, had he, she or they been living.”

When the will was executed in March, 1891, testator’s son Peter had six children living, five by his first, and one by his second wife. The first wife’s children were parties to this proceeding, some of them by attorney, and the others by their respective guardians. The trustees duly appointed by the court under the special trust above quoted were also made parties thereto, and united with said children in denying that appellant, as executrix, etc. of her late husband, or otherwise, had any right to or interest in the corpus of said trust in their hands or any part thereof; and their contention was fully sustained by the court below. Hence this appeal.

A careful consideration of the provisions of the will leaves us in no doubt as to the accuracy of the conclusion reached by the learned president of the orphans’ court. Any other construction of the will would not only defeat the manifest intention of the testator, but it would do great violence to the-language employed by him in creating the trust as to the share of his son Peter. The second and third items of the will must be read and considered together. When so considered, it is. quite clear he never intended that the one sixth of his estate given to Peter in the second item should go to him absolutely, to be disposed of as he might see fit. On the contrary, he clearly intended that it should go into the hands of a trustee or trustees appointed by the court to be invested in the manner specifically directed in the third item, and that the income, interest and dividends thereof should, from time to time as received by the trustees, be paid to his son Peter during his natural lifetime, etc., and from and after his decease, the principal or corpus of the trust should be “ to and for the only proper use and benefit of ” Peter’s children by his first wife. In other words, as to the share in question, the testator created an active special trust, for and during Peter’s natural life with limitation over of the corpus of the trust to his children by his first wife. That intention being clearly and distinctly expressed, and being at the same time unquestionably lawful, there is no reason why it. should not be given full effect.

There is nothing in either of the assignments of error that requires extended discussion. The language employed by the testator is clearly insufficient to create an estate tail. The word “ children ” is primarily a word of purchase, and there is nothing whatever in the context to indicate that it was intended to be employed in any other sense.

Decree affirmed and appeal dismissed at appellant’s costs.