86 Pa. 240 | Pa. | 1878
delivered the opinion of the court,
Several important and interesting questions have been raised on this record, which we do not consider it necessary to discuss and decide, as we are of opinion that it appears upon the will of Elizabeth Wilcocks that by the words, “ die without issue,” she meant a failure of issue at a definite period, to wit, the death of both her nieces. Nothing certainly is better settled than that the intention of a testator, if not contrary to law, shall be carried out in the disposition he may make of his property after death. There are many things which he cannot do, however clearly he may intend it. He cannot create a fee and clog the power of alienation or relieve it from liability for debts. He cannot create a perpetuity by an executory devise after an indefinite failure of issue or at any other future period, which may not be until after a life or lives in being and twenty-one years. But he may give an estate in fee, subject, on certain contingencies, to be reduced to an estate for life with a remainder over, but if those contingencies do not happen, the first gift in fee to stand. It is but an alternative limitation, and such limitations have been long recognised as valid: Fearne on Cont. Rem. 373; Luddington v. Kime, 1 Ld. Raym. 203. This is precisely, we think, what the testatrix meant in this case, and there was nothing unlawful in it. She meant to give her two nieces a fee-simple, but subject to the contingency that if they should both die without issue living at the death of the survivor, then over to her nephew, Charles Ingersoll, in fee. It is undoubtedly true that if she had merely provided that on their death, “ without issue or without leaving issue,” the devise over should take effect, the law would have construed it to he an indefinite failure of issue, and their estate would thereby have been reduced to
Such being the state of the limitations upon the proper construction of this will, it is clear that the trust created by the testatrix was a living and active trust, important, if not absolutely necessary, to preserve the estate for the ultimate devisees. If it was personal estate, it was important to prevent unwise investments and to relieve the first takers, subject to the contingencies, from being under the necessity of giving security ; and if it was real estate, to preserve it from waste and' dilapidation. It would seriously impair the right of disposition in the owner of property, if he could not, by the appointment of trustees in whom he had confidence, make provision against such consequences. The fact that the testatrix intended also as one of the objects of the trust to create sole and separate estates for her nieces, then being unmarried and not in contempla; tion of coverture, though that object be considered inoperative and void, does not invalidate the trust, if for other reasons it ought to be supported.
Decree reversed, and now it is ordered and decreed that, the bill be dismissed with costs; the costs of this appeal to be paid by the appellees.