266 Pa. 474 | Pa. | 1920
Opinion by
Elizabeth S.. Field, late of Philadelphia, died testate in 1889, and her last will gives all of her estate, except $200, “unto the Provident Life & Trust Company their successors and assigns forever in Trust for my niece Elizabeth Stockdale Field daughter of my brother the late Benjamin Field her heirs, executors, administrators and assigns forever provided however that if my said niece should not marry or being married should die without issue living at the period of her death, it is my will and I hereby direct that my said Estate shall go and be distributed among the following persons” (naming them). She also appointed the trust company executor, and by a codicil authorized it to sell all her real estate. The niece is still living, but unmarried, and in 1917 was adjudged feeble-minded and the Philadelphia Trust Co. is guardian of her estate, which amounts to $24,000. This appeal is by the guardian from a decree of the orphans’ court refusing its petition for the fund and continuing the trust.
The case was properly decided. In the opinion of this court by Mr. Justice Strong, in Sheets’s Est., 52 Pa. 257, 263, it is held that “No principle is better settled than that if a testator in one part of Ms will give to a person an estate of inheritance of land, or an absolute interest
The next question is whether the event that the niece should not marry or being married should die without issue is to be determined as of the death of the testatrix or of the niece. It may be conceded that the words “die without issue” and “death unmarried” usually mean such death in the lifetime of the testator, but that is only so where the will fails to disclose a contrary intent: Powell on Devises (3d ed.) p. 763. Here the language of the will differs from that in the cases cited for appellant, and, taken as a whole, leads to the conclusion that the event upon which the gift over is to take effect must be determined at the death of the niece; and we agree with the orphans’ court that the contingency of the niece not marrying means during her own life and not
The placing of the estate in a trust and investing the trustee with authority to convert the real estate, indicate an intent that the property shall be kept intact and not pass directly to the niece upon the death of testatrix. A trust to support contingent interests in remainder is valid although active duties are not imposed upon the trustee. See McKinney’s Est., 260 Pa. 123; Price’s Est., 260 Pa. 376; Stewart’s Est., 253 Pa. 277; Spring’s Est., 216 Pa. 529; Denis’s Est., 201 Pa. 616; Dodson v. Ball, 60 Pa. 492.
Admittedly the law favors an absolute rather than a defeasible estate and a vested rather than a contingent one, yet every will presents its own problem. It follows that the trustee should remain in possession of the estate and pay the income therefrom to the guardian of Eliza
The decree is affirmed at the costs of appellant.