242 Pa. 3 | Pa. | 1913
Opinion by
Caroline Kellerman by her last will directed that her residuary estate be divided into three equal parts, and that one of these parts be subdivided into four shares. As to one of these four shares she directed as follows:
“One other fourth part......I give, bequeath and devise to my executors in trust for the following uses and purposes, that is, to keep the same invested and to pay over the income thereof to my granddaughter, Bertha Crowley, wife of John C. Crowley, for and during all the term of her natural life for her sole and separate use, and from and immediately after her decease then in trust to and for the only proper use and behoof of all and every the child and children which she may leave surviving her, and the lawful issue of any of them who may be then deceased having left such issue, their several and respective heirs, executors, administrators and assigns, in equal shares forever, per stirpes and not per capita.”
Bertha Crowley’s husband is deceased, and by the adjudication distributing the balance on the executors’ first account one-twelfth of the fund, derived entirely from personalty, was awarded Bertha Crowley, upon the theory that the separate use trust had become inef
“A court is not bound to give the like judgment which had been given by a former court, unless they are of opinion that the first judgment was according to law; for any court may err; and if a judge concedes that a judgment given by a former court is erroneous, he ought not in conscience to give the like judgment, he being sworn to judge according to law. Acting otherwise would have this consequence; because one man had been wronged by a judicial determination,' therefore every man,.having a like cause, ought to be wronged also.”
In Shindel’s App., 57 Pa. 43, this court held in express terms that while a decree distributing the balance
The second question raised is a more serious one, but a careful examination of the argument advanced in support of appellant’s contention leaves us unconvinced that error was committed in disposing of it. The statement of the question by the appellant is open to the criticism that it assumes something as a fact for which, there is no warrant. It is thus stated: “Does the rule in Shelley’s Case apply to a devise where a separate use trust for life is created for the benefit of a married daughter, whose husband dies after the making of the will, with remainder over to those who correspond in description with the lineal heirs of the life tenant? And does the separate use trust end on the death of the husband, and the life estate merge with the remainder, giving the daughter a fee?”
It does appear that the husband died after 23d May, 1901, the date when the original will was made in which the trust was created. But by codicil dated 10 July, 1909, testatrix in express terms ratified and confirmed the will of 23d May, 1901, which was in effect a republication of the will. Was the husband living when this codicil was executed? The fact with respect to this seems to have been carefully avoided in the evidence. If, at that time the husband was dead, the conclusion would seem unavoidable that the trust was not for the
“On the merits of the contention, the auditing judge is of opinion that the words ‘child and children which she may leave surviving her and the lawful issue of them who may then be deceased’ are words of purchase and not of limitation; that, although one of the purposes of the trust has ceased by the death of Bertha Crowley’s husband, the other has not, that is, the preservation and conservation of the corpus for the benefit of those entitled in remainder. Until the death of the equitable life tenant, it cannot be determined who will compose the class, consisting of surviving children and the issue of those then deceased.”
In this conclusion we agree. The appeal is dismissed.