Forney's Estate

161 Pa. 209 | Pa. | 1894

Opinion by

Mr. Chief Justice Sterrett,

The solution of the questions involved in this case is plain. In making his will, the testator had the twofold purpose of providing (1) for the administration and management of his estate; and (2) the maintenance of his family. The character and condition of his estate furnish sufficient reasons for the first purpose. It consisted mainly of the “ Press ” and “ Press Building,” which required competent handling in order to meet testator’s very large indebtedness, and at the same time maintain his family. It is conceded that if he had not sold the “ Press ” the trust created would have been valid; but it is insisted that that act operated as a revocation of the will in toto. The conduct of the “ Press ” was no doubt a strong inducement to the creation of the trust; but it was only part of his scheme.

The scheme was modified to that extent; but there were still active duties to be performed. Assets must be collected and a still large indebtedness paid in accordance with the declared purpose of the testator. If the trust was valid when created, it must continue operative until his scheme has been fully carried out. This principle is distinctly recognized in both Cooper’s Estate, 4 Pa. 88, and Balliet’s Appeal, 14 Id. 451, upon which appellants seem mainly to rely. Thus it was said in the former: “ This is not a case where a testator having himself sold a part of his estate previous to his death, left sufficient remaining to carry his intention into effect except so far as he had anticipated that intention by arrangements of his own. In such case, a sale of land operates only pro tanto.” So in Balliet’s Appeal 'it was said: “ In this case part only of the property devised and bequeathed is disposed of: consequently, those parts of the will which remain are untouched. There is no impossibility, as in Cooper’s Estate, 4 Barr, 88, to give effect to the disposition of the will.” So there was no impossibility here to finish the purpose of this testator. There is scarce a case in which the circumstances of the testator have not, in some respect, changed materially between the date of the will and its operation; and few trusts would survive the application of the doctrine for which appellants contend. Fortunately the policy of the law is to carry out testamentary intention so far as it is possible. If there cannot be whole, there may be partial execution. When Mr. Forney sold the “ Press,” he disposed of part only of the subject in anticipation of the performance of one of the duties which he had imposed on his trustees, and to that extent rendered the will inoperative; but enough remained to sustain and require the continuance of the trust.

The trusts declared for testator’s daughters fall clearly within the principle of Dunn’s Appeal, 85 Pa. 98. The bequest is in trust for their “ natural lives,” “ the interest and income alone ” of their shares to be paid to them respectively whether covert or discovert. The intention is clearly indicated to protect them, not only against their own acts but as against any husband they may respectively have, present or future. The trust was therefore active.

It follows therefore that the conclusions reached by the learned court below and the distribution of May 20, 1898, are substantially correct, and the decree should be affirmed.

Decree affirmed and appeal dismissed with costs to be paid by the appellants.