219 Pa. 422 | Pa. | 1908
Opinion by
Joseph Fleming died May 15, 1890. The fourth clause of his will is as follows: “ All of the real estate which at the time of my death I may own that is situated in the city of Pittsburg, Pa., I give, bequeath and devise to my said hereinafter named executors, or the survivor of them, in trust for the following uses and purposes and not otherwise : For the period of fifteen years after my decease my said executors, or the survivors of them shall take charge of said real estate, keep the buildings and improvements thereon insured, and in good repair, rebuild the same in case of fire, keep the same rented and collect the rents thereof and after deducting taxes, cost of insurance repairs, &c., the net income derived therefrom shall be divided and paid over quarterly to and among my six children George S. Fleming, Sallie, wife of G. A. Hays, Emma, wife of Bobert F. Shannon, Bessie, wife of John Warden, and Annie and Mattie Fleming. During the said term of fifteen years said real estate shall not be liable or subject to any execution or other legal process for any debt liability or engagement of any of my children. Hone of my children shall during said term have the right to sell, pledge or in any other way anticipate their respective shares in the rents or income of said real estate nor shall they have the power to sell, mortgage or otherwise encumber their prospective interests therein. At the expiration of said term of fifteen years after my decease, the said trustees or the survivor of them shall cause said real estate to be fairly valued and appraised and shall divide the same equally among my six children above named, or if any of my said children shall have died before the time for such division, to the children then living and the heirs at law or devisees of the child or children who shall have died, the said trustees shall execute and deliver any necessary and proper conveyances or papers for these shares or interests to those respectively entitled thereto. The death of any of my children shall not in any wise affect the provisions of this trust but the share or shares of the one, or of these, so dying shall descend to his, her or their heirs at law or devisees subject to all the conditions herein named.” George S. Fleming died August 13, 1904, within the fifteen year trust period created by his father’s will. By his will, executed
If the will of Joseph Fleming has directed to whom and under what conditions the fund before us shall go, it cannot go elsewhere, and the conditions of the devise of the interest to George in the land which the fund now represents must prevail. At no time during the fifteen years succeeding his father’s death could the interest of George in the estate have been made liable for any of his debts. He could not, during that period, have even pledged his income from it to a creditor, because his father had so directed, but the direction of the testator -went still further and prohibited him from selling,' mortgaging or otherwise incumbering his “ prospective ” interest in the real estate. The testator himself designates this interest as prospective, and, as was properly held by the learned president judge below, “ it was made a condition of conveyance to the children that they survive the trust.” If any one of them should die during the continuance of it, his or her interest was to pass to substitutionary persons named by the testator, “ the heirs at law or devisees of the child or children who shall have died.” Upon the death of a child during the fifteen years, his or her interest in the father’s estate ceased and descended to “ his or her heirs at law or devisees subject to all the conditions herein named.” The only power which a child could exercise over his prospective interest was to devise it. Without a devise of it, it descended to the heirs of
Appeal dismissed and decree affirmed.