254 Pa. 379 | Pa. | 1916
Opinion by
This is an appeal by the defendant from a judgment for the plaintiff, entered on a case stated. The points involved are: (1) Can a testamentary power to sell real estate after the death of a life tenant be exercised by a trustee before that event, if done with the former’s consent, and for the purpose of an ultimate distribution of the testator’s estate? (2) When the life tenant, himself, purchases the. property in question from the trustee, should such a sale be declared invalid in an action of assumpsit instituted more than 23 years thereafter by the administrator c. t. a. of the then deceased cestui que trust, to recover purchase-money from one who subsequently bought the premises at a public vendue duly ordered in a judicial proceeding, such personal representative being authorized and directed to execute a deed and collect the fund; there being no attach in the suit at bar upon the sufficiency of the consideration paid by the life tenant at the time of the sale to him, and no allegation or proof of a fraudulent purpose to defeat or destroy the trust; it appearing, moreover, that, “immediately after acquiring the property, Sprenger (the life tenant) made extensive improvements” thereto, and that the purchase-money paid by him had been distributed to those ultimately entitled to the testator’s estate under the provisions of the will containing the power of sale?
The governing facts set forth in the case stated are as follows: Adaline Sprenger, who was the wife of John Abraham Sprenger, died, testate, June 5, 1892; she willed all her estate to Frank R. Diffenderffer, her executor, in trust, to pay the income therefrom to her husband for life and, after his death, to sell the property and divide the proceeds among certain designated legatees. At the death of the testatrix, she owned, inter alia, a property, No. 142 East Chestnut street, in the City of Lancaster. On July 28,1892, Diffenderffer, the trustee, sold
The clause of the will under which the trustee was empowered to sell is as follows, viz: “Item. After the death of my said husband, J. Abraham Sprenger, it is my will and I do hereby direct that my executor shall sell all my real and personal estate that shall remain in the hands of the said trustee and the proceeds of such sale or sales and all other moneys that may belong to the estate shall be divided into four shares; one of which I give and bequeath to the children of my sister-in-law, Martha Connell, in equal shares; one to the children of my brother-in-law, George F. Sprenger, in equal shares; one to the children of Anna Sarah Diffenderffer, wife of Frank R. Diffenderffer, in equal shares, and one to Herbert E. Eicholtz.”
In holding that the clause just quoted sufficiently empowered the trustee to make the sale here under attack, and that it should not now be declared invalid, the court
Rife v. Geyer, 59 Pa. 393, relied upon by the appellant, may readily be distinguished from the present case. The real questions there determined concern the character of the trust then before the court — whether active or passive — and the applicability of the Rule in Shelley’s Case. Moreover, the report of Rife v. Geyer indicates that there was no consideration given by the life tenant when the trust property there involved was conveyed to him, and that the conveyance was for the very purpose of destroying the trust created by the testator; whereas, here there was no such intention, and the price paid, the sufficiency of which is not questioned, was immediately substituted for the real estate.
Mr: Chief Justice Brown took no part in the decision of this case, since, while at the bar, he at one time acted
The assignment of error is overruled, and the judgment is affirmed.