198 Pa. 335 | Pa. | 1901
Opinion by
If the estate of Jennie Hively, the appellant, was absolute in fee simple in the property which she and her husband undertook to mortgage to the appellee, the judgment entered on the verdict must be affirmed; but if it was a separate use trust, her mortgage was worthless, and the judgment cannot be sustained. She was the daughter of Barbara C. Elsey and the estate which she held came to her under the following clause in her mother’s will: “As to my real estate, to wit: the dwelling in which I now reside, I give, devise and bequeath the same to my executors hereinafter named with full power to sell the same as a whole or in parts or lots and to give good and sufficient deed or deeds for the same to the purchaser or purchasers. And I give and devise and bequeath to my son Warren Elsey, the sum of six hundred and twenty-five dollars to be paid to him without interest out of the sum realized from the sale of my real estate. As to the balance of the proceeds after deducting said sum, I give, devise and bequeath the same to my daughter, Jane Hively, wife of Harry Hively, for her sole and separate use independently of her present or any future husband the full one half of the balance.” The executors did not sell the real estate, but the son and daughter made an amicable partition of it, and that paid taken by the appellant was mortgaged to the appellee.
The words of the will so clearly create a separate use trust for the daughter, a feme covert at the time of its execution, and still continuing so, that no one of the many cases from Lancaster v. Dolan, 1 Rawle, 231, down to Wilbert’s Estate, 166 Pa. 118, need be cited to declare what they mean. The intention of the mother was to give the daughter an estate for her enjoyment, free from any dominion over it by the husband, safe from his improvidence or importunities and with no power in either of them or both together, to dispose of it during the coverture of the wife, and the very words that should have been used, were adopted in creating and giving it. If the testatrix so intended that her daughter should have only a separate use, her intention could not be defeated by the act of her children in dividing her real estate between them, instead of the proceeds of a sale of it by the executors. If these children, who are the executors, had sold the property, the daughter’s
No jus disponendi in the appellant is given by the will of her mother, and Bailey v. Allegheny Nat. Bank, 104 Pa. 425, cannot be relied upon by the appellee as holding that she had such power. In that case the testator, in creating a separate use trust, declared that the shares of his children should belong to them separately and exclusively, whose receipts therefor should be taken as a full discharge to his executors, and it was held that there was a general power of disposal by implication; but there are no words in the will before us from which such power can be implied.
This is not a spendthrift trust in which the trustee is also the cestui que trust with absolute ownership of the subject of the trust, and it does not fall, as is urged by counsel for the appellee, because a trustee is not named for the cestui que trust. So well is this settled that we need not discuss it: Wright v. Brown, 44 Pa. 224; Reiff and Umstead’s App., 60 Pa. 361; Shonk v.. Brown, 61 Pa. 320; Richardson v. Aiken, 104 Pa. 567; MacConnell v. Lindsay, 131 Pa. 476.
The learned trial judge seemed to think, as we read his opinion refusing a new trial, that under the statutes relating to married women the estate of the appellant was under her absolute control, for he says : “ She was to receive the money without restriction or condition except that it was for her sole and separate use, independent of her husband. That was only what the statutes secure to her, and therefore had no effect. She would take the money with absolute control over it and do what she pleased with it.” The acts of 1848 and 1893 in removing the disabilities of married women have no application to the construction of instruments creating separate use trusts. Legislation has not affected them, and in equity the intention of settlors, donors and testators still will and ought to be carried out. Disabilities of married women may be removed, power over their own separate estates may be given to them, but the silence of the statutes, as to separate use trusts created for them, will continue to be prohibition ; and the time ought never to come when they can burst the bonds placed upon them by