144 Pa. 444 | Pennsylvania Orphans' Court, Philadelphia County | 1891
Opinion,
The facts of this case, as they are stated in the paper-books, are, substantially, as follows: The last will and testament of Francis Funk, deceased, was executed May 27,1872 ; at that
Francis Funk, the testator, did not die until September 6, 1886; his wife and his son Francis died some years before. He left to survive him, therefore, only one son and the two daughters before mentioned. By his last will and testament, already referred to, he first provided for the payment of his debts and funeral expenses, and gave the residue of his estate to his executors, in trust: first, to pay the net income of the whole of his estate to his wife during widowhood, for the support of herself and daughter Mary U. as long as she remained single, provided she assisted her mother; and for the education and maintenance of the two sons until they became self-supporting ; second, at the termination of the widowhood of his wife, (a) to expend so much as might be necessary for the education and maintenance of his two sons until they became self-supporting; (5) to pay to Mary U. one fourth of the net income of the estate so long as she remains unmarried; (e) to pay to his daughter Ella Z. Fourgeray the unexpended balance of the income, provided it did not exceed one fourth of the whole income. Then follows this clause :
“ And, in case of the marriage of my said daughter Mary, then, from that time, to pay over unto each of my said daughters an equal half part of the income which may remain after the necessary amounts expended for the education and support of my said sons: provided, however, that the income to be paid to each one of my said daughters shall not exceed one fourth part of the whole net income of my estate; and provided, also, that the same shall not in any wise be subject to the control of their respective husbands, or be in any way or manner liable for their debts. And from and after the time that my youngest child has completed his education, and is also able to maintain himself, then in trust to pay over unto each of my children an-equal portion of the income of my estate, until such youngest child shall attain his twenty-first year of age; whereupon I order my estate to be divided into four equal parts, each of said
In case either of his children should die leaving no child to survive, that share was to go to the surviving children under the will.
Upon the adjudication of the account of the executors of Francis Funk, the estate was divided into three parts, one of which was awarded to the surviving son, he then being over twenty-five years of age ; and the shares of the daughters were awarded to the trustee to be appointed for them under the will, both being over thirty years of age. Upon their petition the Real Estate Trust Company of Philadelphia was appointed trustee for each daughter, and received each of their shares thus awarded for their benefit. Mrs. Fourgeray’s husband having since then died, the Orphans’ Court declared the trust at an end, and awarded to her the capital of her trust-estate, and it has been paid to her. The Real Estate Trust Company having filed an account in the Orphans Court, Mrs. Quin contended that, as at the execution of the will she was neither a married woman nor in immediate contemplation of marriage, the trust as to her was executed, and she was entitled to have the fund awarded to her absolutely, free from any control or claim on the part of the trustee. The Orphans’ Court accepted this view of the case, and awarded the fund to Mrs. Quin.
It is conceded that Mrs. Quin, at the time of the making of the will, was a single woman, and that the marriage relation which was subsequently formed was not then in contemplation; but it is contended on the part of the appellant that, as she was a married woman when the will took effect at the death of her father, in 1886, the trust for her separate use was operative and effectual for the purposes set forth in the will, and that the trust should have been sustained. This is the only
The rules of equity which govern in the creation of a separate use, and which define its nature and effect in Pennsylvania, are and always have been widely different from those which prevail in England and in many of the states. It was at first decided in Massey v. Parker, 2 Myl. & K. 174, that a separate use created for the benefit of a single woman would not, upon her marriage, debar her husband from his marital rights; but subsequently, in Tullett v. Armstrong, 4 Myl. & C. 377, a different doctrine was declared. It was there held that a valid separate use could be created for the benefit of a single woman, which would come into operation at her marriage whenever it should occur; and, further, that, if the exclusion of any future husband was in contemplation, this intention would be carried into effect, but, if the separate use was intended to be confined to a particular marriage, a second husband would not be excluded from his marital rights. The question in each case under the English rule is, what was the intention of the settlement or will? Lewin on Trusts, 758. Under the English rule, if the feme sole chooses to make any disposition of the property before coverture, she may do so. She has the option of determining the trust at any time before coverture; but, if she does not, it will attach on the first or any subsequent marriage, according to the terms of the will or other mode of settlement. And even after coverture, unless her power of anticipation be restrained, the feme covert may, in general, deal with the property precisely as if she were feme sole. “ A feme covert, acting with respect to her separate property,” says Lord Thublow in Hulme v. Tenant, 1 Brown C. C. 20, “is competent to act in all respects as if she were a feme sole.” Upon this ground, it has been determined that if, without any direct or express reference to her separate property, a feme covert, who has property settled to her separate use, professes to bind herself by any written instrument, the implication of law is that she meant to charge her separate estate, for, except with reference to that, the instrument was without meaning and nugatory. Thus, if a feme covert execute a bond,
It must be observed that the general doctrine upon which this separate estate of the wife rests in this state and the other states named, is essentially different from that prevailing in England. It is peculiar; its peculiarity, as we said in MacConnell v. Lindsay, 131 Pa. 476, being founded on the particular purpose intended to be accomplished. In England and in many of the states, the rule, as we have said, is to treat the wife as tbe absolute owner, possessing the jus disponendi and the incidental power of charging the estate with her debts, as if she were a feme sole; whereas in Pennsylvania, this estate in equity was intended, through her disabilities, to protect the feme covert not only from her own improvidence, but also from the improvidence and importunity of her husband. As early as 1829, in the case of Lancaster v. Dolan, 1 R. 231, it was distinctly held that a feme covert is, in respect to her separate estate, to be deemed a feme sole only to the extent of the powers clearly given by the instrument by which the estate is settled, and that she had no right of disposition beyond that. “ Instead of holding the wife to be a feme sole to all intents as regards her separate estate,” says Chief Justice Gibson in that case, “ she ought to be deemed so only to the extent of the
In Maurer’s App., 86 Pa. 380, a case involving this precise question, Mr. Justice Shauswoob says: “ It is too late to shake
But, as restraints upon alienation are repugnant to the general policy of the law, it became necessary to restrict the operation of the rule; in other words, the peculiarity of our system, as declared in Lancaster v. Dolan, called for a corresponding rule, confining its operation to a more restricted class of persons; for, if a separate estate might be settled upon every single woman, the free alienation of property and transmission of titles would thereby be most seriously embarrassed. Hence, in Smith v. Starr, 3 Wh. 62, it was held that, if a married woman having a separate estate becomes discovert, the restraints upon the disposal of the estate attaching during coverture cease to exist when she becomes sui juris. This case was followed by Hamersley v. Smith, 4 Wh. 126, where Chief Justice Gibson, in the opinion of the court, said: “ The point in contest was virtually decided in Massey v. Parker, 2 Myl. & K. 174, where it was settled that a restrictive settlement, by a gift to the separate use of an unmarried woman, is an impracticable one; and that it has no force to prevent her from giving the property to a husband by the act of marriage, or disposing of it in the interim.....Perhaps it is not easy to discern the policy of a rule which disables a benefactor from making a determinative provision for his beneficiary which cannot be squandered or reft from him; yet the law seems to be thus settled, not only by the cases cited, but by Newton v. Reid, 4 Sim. 141, and Woodmeston v. Walker, 2 Russ. & M. 197, in which the principle was applied to an unmarried woman. An apparent exception to it is a gift to the separate use of a woman in contemplation of her marriage with a particular person, which, by force of the agreement implied by his assent, constitutes a future separate use during the particular coverture, but which, in reality, is no exception at all......Admitting the soundness of the principle that there cannot bé a restraint which is repugnant to a gift, it is impossible to doubt the correctness of the decision in Massey v. Parker, which is in accordance with it. Now, the difference betwixt that case and the present is that here the feme was married at the time of the gift, and there
The same doctrine is reasserted in McBride v. Smyth, 54 Pa. 245. Mr. Justice Strong says: “Whatever may be the rule in the English courts, it is too well settled to be disturbed by anything else than a legislative enactment, that a separate use for a woman cannot be created unless she is covert, or unless in immediate contemplation of her marriage; ” citing Potts’s App., 30 Pa. 168 ; Dubs v. Dubs, 31 Pa. 149. “We take it, therefore, as settled,” says Mr. Justice Agnew in Wells v. McCall, 64 Pa. 207, “ that the trust will be supported notwithstanding the cestui que trust is a feme sole at its creation, provided that it be done in immediate contemplation of marriage. This leads us to inquire what is meant by an immediate contemplation of marriage. Evidently the expression means in contemplation of an immediate marriage; one presently in view of the donor, and to take place in a short time after the instrument is to take effect; in contemplation of marriage with a particular person, says Gibson, C. J., in Hamersley v. Smith, supra. That the marriage must be in immediate view at the time of the creation of the trust, is proved by all the cases which decide that on the termination of the coverture the trust falls and is not revived by a second marriage; for, if any marriage would answer to the provision for the trust, a second would as well as the first. But a second marriage is evidently a thing not in immediate contemplation, being cut off from view by the uncertainties of a first marriage, the death
So, also, in Snyder’s App., 92 Pa. 504, the testator made his will in December, 1870, and died a few days thereafter. The youngest daughter attained majority in August, 1878, which was the time fixed for the division of his estate. At this time one of the daughters was married and another betrothed; the other daughters remained single, and it was conceded that the will was inoperative to create any trust as to them. But, as to the married daughter and the daughter then contemplating marriage, it was contended the trust for their use then took effect. It was held, however, that, as none of the daughters were married or in contemplation of marriage at the creation of the trust, the separate use fell. The fact that one of them became covert or betrothed before the distribution of the estate was of no effect; the validity of the trust must be determined by the status of the woman at the time of the creation of the trust. “This appears,” said Mr. Justice Sterbett, “to be the utmost limit to which this court has gone iir favor of private right as against public policy, and it would, perhaps, be unwise to go any further. Trusts for coverture, either actual or in contemplation at the time of their creation, have some foundation in reason, which cannot apply to coverture in the more remote future. In the former, the testator is presumed to know the then existing or contemplated alliance, and has the data on which to base an intelligent judgment as to the propriety of creating a trust; whilst in the latter he can have nothing more than a bare possibility as a guide.” To the same effect is the reasoning in Philadelphia Trust Co.’s App., 93 Pa. 209.
Whatever may be the rule in equity elsewhere, there can be no question whatever as to the rule existing in this state. The doctrine here is, undoubtedly, that a separate use can only be created for the protection of a woman married or in immediate contemplation of marriage, which, of course, implies marriage with a particular person; for, how could a woman be said to be in immediate contemplation of marriage if she was not at the time contemplating marriage with some particular person?
The marriage must be in existence or in contemplation at the creation of the trust; and, although the trust does not take effect until the testator’s death, it is very plain that it is created and exists under and by virtue of the will. For, as Lord Mansfield said, in Harwood v. Goodright, Cowp. 90: “ A devise of lands is considered by our courts not so much in the nature of a testament as of a conveyance by way of appointment of particular lands to a particular devisee.” Upon that principle it was established that a man could devise those lands only which he had at the time of such conveyance, and no after-acquired lands would pass; whereas a testament would operate upon whatever personal estate a man died possessed of, whether acquired before or after the execution of the instrument: Williams on Exrs., 6. In Girard v. Philadelphia, 2 Wall. Jr. 305, Judge Gbieb. said: “ The reason why after-purchased lands do not pass by a will, even though the testator has expressed clearly his wish or intention that they should, is not because such a purchase is a revocation of the will, but because a will is in the nature of a conveyance or an appointment of a particular estate; and, consequently, the testator must have the power to dispose at the time the will is executed. He$ice, a devise of land, though it operates in future, can pass only such interest or estate as the testator had at the time and continued to have till his decease.” So, in our own case of Girard v. Philadelphia, 4 R. 335, it was held that real estate acquired after the making of a will did not pass under a devise of the residue of the testator’s real estate, without a subsequent republication of the will, even where the testator, in addition to the general devise of the residue, declares in a codicil that it is his wish and intention that all the real estate which he shall thereafter purchase should pass by the same will. The ratio decidendi was stated in part as follows: “ That a will is a species of conveyance, not strictly subject to the rules of conveyances at the common law it is true, the vesting of the estate being postponed till the death of the testator; yet operating, as regards his disposing power and capacity, by relation to the making of it, in
' Of course, the matter decided has long since been changed by the act of April 8,1833, P. L. 250, and by the more recent act of June 4,1879, P. L. 88; but the reasoning of the case is none the less applicable here on that account. If a will is executed in due form by a person of unsound mind, it will not be received for probate because he was subsequently restored to his right mind, and died without revoking it. The question is as to the testator’s capacity at the time of execution. Upon the same principle, the” legality of the execution of a will is to be judged of by the law as it stood at the time of its execution: Mullen v. McKelvy, 5 W. 399; Jack v. Shoenberger, 22 Pa. 416; Gable v. Daub, 40 Pa. 217 ; Camp v. Stark, 81* Pa. 235. So, also, the power or right of a person to make a will is determined by the law as it existed when the will was made, not as it was at the testator’s decease : Kurtz v. Saylor, 20 Pa. 205. In Martindale v. Warner, 15 Pa. 471, the will was made before the act of May 6,1844, P. L. 565, which provides against the lapse of legacies in certain cases, but the testator died after its passage. The will gave the residuary estate to the testator’s two sons, who died before the testator, each leaving children. In the opinion filed, the court said: “‘No devise or legacy hereafter made,’ is the phraseology of the act; thereby meaning, according to the usual acceptation of language, wills made and executed after the passage of the act. If they had designed otherwise, it would have been easy to express their meaning in plain and unambiguous terms. Though a will, it is true, does not take effect till after the testator’s death, yet it is inchoate, though not consummate, from the execution of it; and for many purposes in law, of which this is one, it relates to the time of the making of it.” It was accordingly held that the devise in favor of the residuary legatees lapsed. “ It is true that every will is ambulatory until the death of the testator,
In this state of thelaw,howwasitpossiblethatNeale’s Appeal could have been determined otherwise than it was ? It was not pretended in that case that Elwina Finlay, at the time of the making of the will of James E. Brown, deceased, was either married or in immediate contemplation of marriage. In fact she was but nine years of age, and did not marry for almost eight years thereafter. The trust which was created by the will, was at the time of the execution of the will, either valid or invalid, and-her subsequent marriage in the lifetime of the tes
The decree of the Orphans’ Court is affirmed, and the appeal dismissed at the cost of the appellant. •