80 Pa. 348 | Pa. | 1876
delivered the opinion of the court,
Frederick Gaul, Sr., died in the year 1831, leaving seven children. Before that time, and after the 1st of August 1825, the date of the execution of his will, his son Joseph had died. Having bequeathed his furniture and plate to his wife, the testator committed his residuary real and personal estate to the care and management of his executors. They were authorized to receive the annual income, and out of it were directed to pay $2000 a year to his wife, and to pay the residue semi-annually in equal parts to his eight, children. The provision in favor of his son Jacob was in these words: “ Another eighth part I direct to be paid to my son Jacob, or, at the option of my said executors, I authorize them to appropriate and apply the same for the support and maintenance of my said son Jacob, as they may see fit and proper, and so that the same, or any part thereof, shall not be liable to his disposal, orders, debts, control or engagements ; and in case of his decease, then to appropriate and apply the same for the support, maintenance and education of his child or children.” Upon the death of the widow, a distribution in equal eight parts was directed. One of these parts was given to Jacob “for and during all the term of his natural life, and after his decease, then.
After the death of Jacob Gaul, on the 9th of March 1811, letters of administration on his estate were issued to James S. Huber, the appellant, by whom the present proceeding was instituted to enforce a settlement of the accounts of the executors as trustees of the estate devised for the benefit of Jacob by his father. Both the trustees were dead, and their executors were made parties to the proceeding. After hearing, the petition was dismissed by the Orphans’ Court.
In this appeal the questions presented and argued have relation to the right of the appellant to an account, first, of the principal of Jacob’s share; secondly, of the accumulated income received during Jacob’s lifetime, and not paid to him, nor appropriated for his support; and thirdly, of the interest of Jacob in the share of his brother-Joseph, which had lapsed; and in property acquired by Frederick Gaul, Sr., after the date of his will, as to which he died intestate. Upon the first question, it is claimed by the appellant’s counsel, that the terms of the devise require the application of the rule in Shelley’s case, and that a gift for life having been made to Jacob, the provision that the share should go, “ after his decease, to all his children then living, and the issue of such of them as may be then dead, their heirs and assigns for ever,” defined an entire line of succession, limited an inheritance to the children as the heirs of Jacob, and created in him, therefore, an estate in fee, or at least in tail. Haldeman v. Haldeman, 4 Wright 29, and Yarnall’s Appeal, 20 P. F. Smith 335, were especially pressed as authorities for this position. In the first of these cases, a testator by will directed his executors to account for and pay over half-yearly to his three daughters, “ and to each of them during their natural lives, the income and profit arising out of each of their shares of the residue, and after the death of either, then to descend and go to the child, and if children, share and share alike. Should, however, either of my daughters die, and leave no lawful
It is no part of the purpose now in view to examine the long line of authorities bearing upon this perplexed and intricate branch of the law of Pennsylvania. The currents of decision, cross, counter and direct, have been traced in a case so recent as Dodson v. Ball, 10 P. F. Smith 492, from Lancaster v. Dolan, 1 Rawle 231, down to Rife v. Geyer, 9 P. F. Smith 393. One element in the long conflict is for the present at rest. Earp’s Appeal, 25 P. F. Smith 119; Ashhurst’s Appeal, 27 Id. 464, and Ash’s Appeal, 2 Weekly Notes 360, have settled principles beyond controversy to prove that this will created an active and operative trust. “ The decisions in all the cases,” it was said by the present Chief Justice in Dodson v. Ball, “ show the undoubted tendency of the judicial mind in this state to follow the true intention of the donor, and
The decision of every case involving the construction of testamentary words must depend in some measure on its special facts. In the present case, Jacob Gaul was not clothed with dominion over the interest devised to him, even during his own life. While one-eighth of the testator’s residuary estate was given to him in
There is no doubt of the rule that where a clause in a will is obscure or ambiguous, words which manifest an intention on the part of the testator to dispose of his whole estate, are to be treated as favoring the construction, that he meant to pass a fee : Geyer v. Wentzel, 18 P. F. Smith 84. So, where a will contains no limi
In the second place, the accumulation of the income in the hands of the trustee during the lifetime of Jacob Gaul, are claimed by the appellant. It is contended that the moneys unexpended for his support and maintenance were his property, irrespective of the nature of the estate devised to him ; that they could not have passed as trust funds to his children, if he had left children, and that they do not go to the heirs of the testator for want of children, but to the administrator. This question is regarded as having been definitely determined by the case of Horwitz v. Norris, 13 Wright 213. Joseph Parker Norris had given one-sixth part of his Eairhill estate to trustees, with power to demise the premises and collect the rents, and with direction, after paying certain taxes and other charges, to apply the money they should receive to and for the maintenance, support and benefit of his son, Joseph Parker Norris, second, for and during the term of his natural life, in such way and manner, however, that the same or any part thereof, should not become subject or liable to the payment of any of his debts, present and future, and so that no creditor should ever be able to take, seize or enjoy the same or any part thereof.” Upon the death of his son, his children were to take the estate devised to him, in such proportions as he should appoint by will. In the exercise of this power, the son (Joseph Parker Norris, second), devised the estate, including rents accrued but not paid to the trustees at the time of his death, to trustees for the benefit of his wife for life as to one-third, and for the benefit of his children as to the residue. In deciding the case, Judge Strons said,, in speaking of the original will, “ this was not the creation of a legal or even of an equitable estate in the land. It was not a devise of renes and profits generally to the son, and therefore, in effect, a gift of the land. The income was committed to trustees, to be applied to his maintenance, support and benefit, and they were to exclude his creditors. He owned what he could dispose of by will as owner. And as he had not power apart from ownership over the income, it is impossible to see how that not received, whether due and payable, or only accruing at his death, can go either to his executors or the trustees appointed by him in his attempt to execute the power.” In Keyser v. Mitchell, 17 P. F. Smith 473, trustees were authorized to collect income and pay it, or such part of it as they should think proper, into the hands of the testator’s son
The remaining question relates to the part of the estate as to which the testator died intestate. The prayer of the petition to the Orphans’ Court was for a citation against the executrix of Frederick Gaul, Jr., and the executors of William Gaul, requiring them to “ file and settle the account of Frederick and William Gaul, trustees.” That prayer presented the specific subject of controversy. The trusts created by the will could have no connection with the intestate property. Under the pleadings, no question in relation to that property can now 'be reached.
Decree affirmed and appeal dismissed at appellants’ cost.
I shall not dissent, but I doubt as to the income accumulated in the lifetime of Jacob Gaul. The question is one of ownership, which the will itself decides by the gift of the corpus directly to him for life, which distinguishes this case from those cited ; while the control over the income by the trustees was merely to prevent its diversion, either by Jacob or his creditors, in his lifetime. At his death his ownership carried it into his estate for distribution.