231 Pa. 232 | Pa. | 1911
Opinion by
The testatrix provided: “I give, .... absolutely unto my grandchildren, Lewis E. Hoopes, Jr., and Emily Hoopes one-half of my estate .... to be equally divided between them.” Immediately after this in the same sentence, she appoints a person, subsequently named in the will as executor, “guardian of my said grandchildren until they respectively arrive at the age of twenty-five years,” the guardian “to pay said principal sum to them on his or her arrival at that age respectively.” The will then proceeds: “In case of the death of one or both of said grandchildren before attaining the age of twenty-five years without issue, the share of such deceased grandchild shall revert to my estate, but in qase of the death of one or both of said grandchildren before attaining the age of twenty-five years leaving issue t'he child or children of such deceased parent shall receive the share of his, her or their parent. I hereby direct that said guardian shall use the income of said one-half of my estate for the maintenance, support and education of my said grandchildren and I direct that they shall be educated in a proper manner and if the income .... shall not be sufficient .... I direct that sufficient amount of principal shall be used for said purpose which amount of principal shall be deducted from their one-half of my estate. ... It is my desire and I hereby authorize and direct my executor to sell and
Upon a former audit, the other one-half of the estate was awarded under the will to a son of the testatrix, absolutely and free of trust. The grandchildren were then minors, and their interests were not passed upon. Emily Hoopes, one of these grandchildren, is now of full age. At the audit of the present account she claimed that upon reaching her majority she was entitled to her share absolutely and free of trust; contending that the provisions of the will postponing the payment of the principal were void, and that the limitations -over were only intended as substitutionary b’equests in the event of her death during the life of the testator. The court below held that the will created a valid trust for this share until she should reach the age of twenty-five years, and awarded the principal to the trustee named in the will. Emily Hoopes has taken this appeal and assigns the award for error.
The first clause of the will standing alone would give each of the grandchildren a fee simple absolute, but what follows makes it clear that the testatrix did not so intend. “A will must be construed as an entirety, so that, if possible, every part of it may take effect. Hence, the independent meaning of one provision must often be modified by reading it in connection with t‘he others. ... It may be that if the first clause .... stood alone, it would give a fee simple .... absolute .... But .... the testator has declared in effect that such was not his intention. No principle is better settled than that if a testator in one part of his will give to a person .... an absolute interest .... and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given, qualities that the law regards
The shares in question are placed in trust until the grandchildren shall respectively attain a given age. The trust is an active one: Mooney’s Est., 205 Pa. 418. “An active trust may be created as a protection to the beneficiary because of his inexperience, .... inability to manage his estate, or for any other purpose, not illegal, which the benefactor may deem wise or expedient:” Spring’s Est., 216 Pa. 529. It is apparent that the testatrix considered it inexpedient to turn over to her grandchildren the principal of the shares bequeathed to them until they should reach the age of twenty-five years; she, therefore, placed these shares in the control of a trustee, vesting in him the power to make investments, which of necessity included the right to reinvest the principal from time to time during the running of the trust: Eshbach’s Est., 197 Pa. 153. She further directs the trustee to use the income for the maintenance, support and education of her grandchildren, with discretionary power to consume principal for these purposes. It would be difficult to find a trust where the necessity for the control of the fund to carry out the intent of the testator was more apparent. In the words of Mr. Justice Green, in Harbster’s Est., 133 Pa. 351, “It is very clear, indeed, to us that the trust reposed in the executors is an .active trust, which makes it necessary at all times for them to have possession of the fund until it is ultimately paid over to the persons entitled to the principal.”
The present case is not within the line of authorities which rule that, where there is no limitation over or other lawful purpose to be served, a provision postponing the payment of an absolute bequest is void. Nor does it fall within the class of cases governed by the rule that a limita
We construe the will to vest in the appellant an equitable estate in fee, absolute and indefeasible upon her attaining the age of twenty-five years, but determinable by her death prior to that time: Kelso v. Dickey, 7 W. & S. 279; McCullough v. Fenton, 65 Pa. 418.
The assignments of error are overruled and the decree of the court below is affirmed at the cost of the appellant.
