49 Pa. 213 | Pa. | 1865
The opinion of the court was delivered, by
The complainants are four of the five children of Joseph Parker Norris, second, deceased, and-they with their brother Joseph are the only children which the decedent left at his death. There was no issue of any deceased child. The leading question presented by the case is what estate, if any, they took in the one-sixth part of the Fair Hill lands, under the .will of their grandfather, Joseph Parker Norris, Sr. Under the will of their father they took nothing, for he had nothing to devise, and his will was but an attempted execution of a power' conferred upon him by the will of the grandfather. Had there been no execution of the power, it is plain the complainants wrould have taken the fee simple of the Said one-sixth part in equal tenancy in common with their brother. But there was an attempt to execute the power, and it therefore becomes material to inquire what the power was, and how far its attempted execution was warranted.
■ By the will of Joseph Parker Norris, Sr., the remainder in the one-sixth part of the Fair Hill property, after the decease of his-son Joseph, the second, was given to and for the use and behoof of the child and children of the testator’s son Joseph, born and to be born, that should be living at his death, and the lawful issue
It is apparent at first sight, that the power thus conferred upon Joseph P. Norris, second, was not a general power of appointment. He was not enabled to select the object of the original testator’s bounty, nor even the class out of which those objects could be selected. The devisees were designated by the donor of the power. They were the children of Joseph P. Norris, second, who might be living at his death, and the issue of any child or children then deceased. There having been no such issue, they were the children exclusively. The donee of the power had therefore but a very limited authority. He could only define the parts, shares, and proportions; the estates and uses, in which, and for which, the members of the prescribed class, that is, the children, should .take under the will of the first testator. Having but a particular, and not a general power of appointment, he could not appoint estates or uses which the donor of the power could not have created by his will, nor could he appoint to any other than to his children, they only composing the class within which any authority to appoint was conferred. Grandchildren of Joseph P. Norris were not within the class designated by the devisor, and they were not therefore possible appointees for any use or estate either in possession or remainder. The general rule is well settled that a power to appoint among children does not authorize either a general or partial appointment to grandchildren. As in the case of a devise directly, without the intervention of a power, grandchildren are not embraced in a gift to children, unless a contrary intent is apparent
Such, then, being the power conferred upon Joseph P. Norris, second, and such the objects among which the power of appointment could be exercised, it is plain that the will of the donee of the power was not a good execution of it. It was transgressive of the limits prescribed by the donor. It attempted to apportion to those to whom there was no authority given to apportion, and at the expense of the class to which the whole estate was given. By this will, Joseph, the second, appointed to trustees not members of the class, prescribed for him, with power in the trustees to receive the rents, issues, and profits, to sell and re-invest in real or other securities. Thus he attempted to make these trustees the remainder-men, instead of the class designated by the donor of the power. He apportioned one-third part of the net rents, issues, and profits to his widow during her natural life, it being, as he declared, the same estate she was entitled to by law, as her dower, in case she survived him. He apportioned the residue, directing it to be divided into five equal shares, as follows: To his son, Joseph P. Norris, the third, he appointed one-fifth in fee simple, and the other four-fifths he apportioned to his four daughters, the complainants, for their natural lives, and after their death, the remainder to their issue and children in fee simple, giving to his daughters individually such powers of apportionment as he himself possessed. The trust in the trustees was not created for the sole and separate use of the daughters. There was no expressed intent to exclude their husbands, and, so far as they are con
It is very clear to our minds that this attempted execution of the power given by the will of the testator just named is invalid both in law and in equity. Whether invalid because the appointment was made to trustees, rather than directly to the objects of the power, it is not necessary to consider. Perhaps in equity, if not at law, an appointment to trustees in trust for the particular object designated by the donor of the power, might be sustained. But where both the legal and equitable interests in the property which is the subject of the power are appointed to those who are not of the class within which the apportionment is authorized to be made, any attempt to sustain it, either in law or equity, is vain, and such was the appointment in trust for the widow of the donor of the power. She is not a member of the class, and though the appointment is attempted to be supported as a substitute for dower, it cannot stand as such, for she was entitled to no dower. Her husband never had an estate of inheritance in the land. He had nothing out of which she was dowable.
So the appointment to the respective issue and children of the complainants, the daughters of the donee of the power, was without authority, and void. We have seen they were not of the class among which Joseph P. Norris, second, was empowered to apportion. In a few instances it has been hold that under a power to appoint to children of the donee of the power, an appointment to a child for life, with remainder to children of the child, will be supported and treated as an appointment to the child of the donee in fee tail. Pitt v. Jackson, 2 B. C. C. 51, is a principal case. There the power was given by marriage articles, and the ruling rests on the doctrine 'ey pres. Such cases are not numerous, nor are they are at all important in their application to the present case; for, if under the appointment to Joseph Parker Norris, his daughters, the complainants, could have taken estates tail, our Act of 1855 would compel us to hold them estates in fee simple. But the cy pres doctrine, to this extent, has never existed in this state, and the limitations in the will of the donor of the power manifest no intention which could be subserved by giving only estates tail to the complainants. Hence we must hold the appointment to the issue or children of the children of Joseph P. Norris, second, to be transgressive and void.
It follows, necessarily, that the contingent appointment over in default of issue of the children of the complainants, falls with the appointment to those children themselves. It -was said in the" argument it was meant to take effect only in case there was no issue or children of a daughter, but not if being such
Nothing done under the power of appointment, then, is effective, except the limitation of life estates to the daughters. It' may be admitted that is distinguishable from that part of the attempted execution which is bad, and, if so, that it may be supported. It is then the case of a partial execution, and that portion of the fee of one-sixth of Fair Hill not appointed remains as devised by Joseph P. Norris, Senior, in default of appointment. That is, each of the daughters has an estate for life by virtue of the partial execution of the power, with an immediate vested remainder in fee, by virtue of the will by which the power was created. Thus, of course, each has a complete fee simple.
It is hardly necessary to add that the appointment to the widow of Joseph P. Norris, second, being invalid, the estates of the complainants are legal.
The next question relates to the ownership of the rents, issues, and profits of the four twenty-fourths of the Fair Hill estates, including also interest on mortgages, which accrued prior to the death of Joseph P. Norris, the second, but which had not been paid to the trustees named in the will of his father, or which was accruing but not payable at his death.
No power over these was conferred upon Joseph, the second, by the will of the first testator, apart from the power to apportion the lands out of which they grew. If, then, they belong to his executors or pass under his will to the trustees appointed by him for the benefit of his widow, it must be because they belong to him. He did not attempt to dispose of them as owner. His will was but an attempted execution of the power, so far as it relates to the lands or income, and he was not in fact the owner of the income, or of the sixth part of the lands, which he was authorized to apportion. Looking again to the will of the first testator, we find that he gave the one sixth part of Fair Hill to trustees, in trust, to let and demise the same for the best rent that could be got therefor, and to take, collect, and receive the rents, issues, and profits, as the same should become due and payable, and the net annual rents thereof, after paying thereout one sixth part of the taxes of the whole estate, and of all necessary and proper repairs, and one like sixth part of an annuity
Adopting as we do this construction of the first will, no question respecting an apportionment of the rents and interests accruing at the death of Joseph P. Norris, second, can arise. The rents and interests due and payable, as well as those accruing, unsevered as they -were from the tree on which they grew, passed with the tree to the children to whom they were limited by the will of the first testator.
The decree made at the Nisi Prius was therefore right.
Decree affirmed.