257 Pa. 385 | Pa. | 1917
Opinion by
This case involves the question as to whether certain real estate situate on the southeast corner of Seventh and Chestnut streets, Philadelphia, is now so held in trust as to prevent its partition. This land was formerly owned by William Swaim, Sr., who died in 1846; and by his last will devised the property in trust for his son James for life and then in trust for the latter’s children and their heirs, giving James power, however, to revoke by will all trusts and interests expressed by the testator and to direct or to appoint such new or other trusts with respect to said property as to him might seem proper. James Swaim died.in 1870, leaving a last will in which he referred to the power given him in his father’s will, and in execution thereof revoked all the trusts and interests so created by his father and devised the estate in trust to pay an annuity to his wife for life and balance of the net income to his son William Swaim, Jr., free from the control of his creditors, and provided further that after the son’s death the property should be held “in trust for the children of the said William Swaim and the issue of such.as may bé deceased, in such
Plaintiff is the owner by purchase of the interest of one of the daughters of William Swaim, Jr., in the premises, and as such filed his bill for partition in this case; and from the decree of the court below, sustaining defendants’ demurrer and dismissing the bill, this appeal was taken.
The action of the court below was based upon the construction previously placed upon the wills in question by the Orphans’ Court of said county, where the questions were exhaustively and ably considered, and in our opinion correctly decided.
The trusts created by the last will of James Swaim. were unquestionably valid as a due execution of the power contained in the will of his father, and created a spendthrift trust for the life of William Swaim, Jr., with remainder over as therein provided. The real question is as to the effect of the trust provisions in the will of William Swaim, Jr. So far as making a testamentary disposition of the property, James Swaim was practically the owner in fee; and the testamentary trusts so created and powers so conferred by him must be given effect. A careful reading of his will shows that he conferred upon William Swaim, Jr., a power sufficiently broad to enable the latter .to create for his children a spendthrift trust, as well as a separate use trust. True, when the will of James Swaim was executed the children of William Swaim, Jr., consisted of three daughters, yet there was nothing to indicate that sons might not thereafter be born to him. The words of the will above quoted empowering his son William by his last will to place such property “in trust for .the sole and separate use of said child or issue of said deceased child, and under such limitations and restrictions as in his discretion he may deem best, so as to secure the same to the said child or issue of deceased child, for his, her, or their sole and
While the separate use trusts were ineffective because the daughters were neither married nor in contemplation of marriage, yet by said wills spendthrift trusts were created in favor of the daughters of Williarn Swaim, Jr., and valid during their lives. No set form of words is necessary to the creation of a spendthrift trust: Graeff v. DeTurk, 44 Pa. 527, 531; Winthrop Company v. Clinton, 196 Pa. 472. See also Shower’s Est., 211 Pa. 297; Dunn & Biddle’s App., 85 Pa. 94.
So far as creating a trust for his own children, or for the issue of any of his children who may have died in his lifetime, William Swaim, Jr., was acting within the powers conferred upon him by the will of his father, but he went further and attempted to continue the trust for various uses and purposes for an indefinite time beyond the lives in being at his death. To that extent the trust so created is invalid, as transgressing the rule against perpetuities, and because no such power was vested in him by the will of James Swaim. However, the trust so designated in the will of William Swaim, Jr., is severable, so that the trust created for his children may stand, and that attempted to be created for others beyond fall: Whitman’s Est., 248 Pa. 285. Where an active trust is created to pay the income to one for life, it will not be defeated because of the failure or invalidity of the gift over of the corpus of the estate. On the death of William Swaim, Jr., the title to the property in question vested in his children as devisees under the will of their grandfather, James Swaim, but their enjoyment thereof was subject to the trust created by their father’s will. The rule against perpetuities is directed against
The assignment of error is overruled and the decree is affirmed at the cost of appellant.