82 Pa. 509 | Pa. | 1876
Judgment was entered in the Supreme Court, March 6th 1876,
This being a petition to the Orphans’ Court for partition of the real estate of the late William Wilkins, situate in Wilkins and Peebles townships, the true question is whether the daughters named in the petition were seised or possessed of any estate, in law or equity, which could be parted and divided among them consistently with the will of the testator. If they bad not, whether by reason of an existing active trust inconsistent with any estate, possession and control on their part, or by reason of an absolute conversion into personalty, the petition must be denied; otherwise the will of the testator would be frustrated. That they had no such seisin or possession at law or in equity seems to be very clear. They had no estate as heirs at law, for the will took the estate out of the course of descent, and cast it upon the trustee for purposes which concern only a limited number of the heirs, viz.: these four daughters. As to these- daughters no trust of the land itself was created, but a trust only of the rents until sale, and then a trust of the purchase-money; while the nature of the trust of the rents, as we shall see presently, is inconsistent with such a devise of the income or profits as carries an estate in the land. The devise is to James A. Hutchison, his heirs and assigns. This carried the whole legal estate to him, at law. The devise was for “the purposes, trusts and conditions hereinafter mentioned, and for no other purposes.” These hereinafter-mentioned trusts, therefore, constitute all the equities of the trust, for the testator says there shall be none other. The first condition of the trust is, “ He shall take the said property into his possession and eharge.” This is inconsistent with a partition, which necessarily invests the purparts in the daughtei’S, or carries the property to an immediate publie sale, on terms differing from those the discretion of the trustee may
The 19th section of the Act of 16th June 1836, relating to the jurisdictions and powers of the courts is a substantial re-enactment of the same provision's. This subject was carefully considered in Dundas’s Appeal, 14 P. F. Smith 325, in which it was held, under these clauses, that the Orphans’ Court has power to control testae mentary trustees in the exercise of powers over real and personal estate. In this case therefore the trustee, were he to undertake to continue to lease contrary to the plain intent of the testator, that his real estate should be sold as occasion should offer as a fund for these daughters, would be amenable to the control of the Orphans’ Court. It is very clear it would be an abuse of his option to lease, were he to make leases conflicting with the testator’s intent to sell and furnish such a fund for distribution among his daughters, or contrary to the policy of law which forbids perpetuities. The lessees themselves may, under the decision in Dundas’s Appeal, be made parties to the citation, if it should be necessary. The trust therefore being inconsistent with partition and possession of the daughters, and no estate in the land being conferred on them, the petition was properly refused.
The decree of the Orphans’ Court affirmed and the appeal dismissed at the costs of the appellant.