280 Pa. 237 | Pa. | 1924
Opinion by
This bill was filed by beneficiaries to restrain the sale of real estate by a trustee. In 1902 the late William P. Harrity and others, known as the Haverford Road Tract Syndicate, entered into a written agreement creating a trust and constituting the Equitable Trust Company, of Philadelphia, now the Continental-Equitable Title & Trust Company, trustee, whereby the syndicate agreed to and did supply the trustee with funds to purchase a ninety-eight acre tract of land, located near the City of Philadelphia, which, the trustee having accepted the trust, was bought accordingly. The agreement stipulates : “That the said trustee shall hold the said tract of land as trustee for the purpose of making sale of the
The duty of renting and selling the property and dividing the proceeds, devolved upon the trustee; it was therefore an active trust: Whiteley’s Est., 273 Pa. 364; Deniston v. Deniston, 263 Pa. 224; Henderson’s Est., 258 Pa. 510; Mooney’s Est., 205 Pa. 418. The primary object of the trust was the sale of the property and by the express and specific provisions of the trust agreement above quoted, the power to sell was vested in the trustee and made subject to its discretion. This special provision was not destroyed by the later general clause, also quoted, that disputes as to the management of the syndicate should be determined by a majority in interest. A contract must be so construed, if possible, as to give effect to all of its provisions: Vulcanite Paving Co. v. Phila., 239 Pa. 524; Thompson v. Craft, 238 Pa. 125; McMillin v. Titus, 222 Pa. 500; Knickerbocker Tr. Co. v. Ryan, 227 Pa. 245. In the last case, Mr. Justice Mestrezat, for the court, says: “It is a rule of universal application that in construing a contract each and every part of it must be taken into consideration and giren effect if possible, and that the intention of the parties must be ascertained from the entire instrument.” This was properly done here by the trial court in holding that the power of sale remained in the trustee and that the provision as to the management of the business of the syndicate had reference to other matters than the sale of the property, pertinently saying: “Since the two clauses involved seem to be mutually contradictory if applicable
Moreover, treating the clauses as irreconcilable, the general provision as to management must give way to the special provision as to sale, under the rule that, where there is a repugnancy, a general provision in a contract must give way to a special one covering the same ground: Keiser v. Reading S. R. Est. Co., 43 Pa. Superior Ct. 130; Elliott on Contracts, vol. 8 (Supplement), section 1515, p. 242; English v. Shelby, 116 Ark. 212, 172 S. W. 817. It is analogous to the rule that written provisions in a contract overcome such as are printed. See 6 R. C. L.
The mere fact that the defendant trustee sought the approval of the Girard Trust Company before contracting to sell, is no proof that the parties construed the agreement as requiring the consent of the beneficiaries to a sale of the property.
It is not necessary to consider the other questions called to our attention.
The decree is affirmed and appeal dismissed at the costs of appellants.