238 Pa. 185 | Pa. | 1913
Opinion by
This appeal comes from a judgment in an issue framed in the court below upon the petition of the appellants for the purpose of determining the title to land. On December 30, 1873, W. A. McCormick, who was the owner of it, executed a deed for it, in which his wife, Susan A. McCormick, joined, to Lewis Z. Mitchell, “In trust for the said Susan A. McCormick and the children of the said Susan A. McCormick on her body begotten and to be begotten by her husband the said Wm. A. McCormick, their heirs and assigns forever.” At the time this deed was executed the McCormicks had two children. Subsequently seven others were born to them, and the nine are the plaintiffs in this issue. On February 19, 1876, McCormick and his wife executed a deed for this property to Sarah Croup, who immediately entered into possession and continued in possession of it until she sold and conveyed it to David Sypher, one of the defendants below. He subsequently conveyed a portion of the property to Mrs. Elizabeth McKee, who died intestate in the year 1906, leaving three children to survive her, and they, with Sypher, were made the defend
The first contention of the appellants is that an active trust was created by the deed from McCormick and wife to Mitchell, and the statute of limitations, therefore, ran against the trustee who held title not only for the mother, but for the children as well. In the court below they contended otherwise by expressly averring in their pleadings that the trust created by the deed to Mitchell was not an active one, and they based their right to a verdict on the ground that an estate tail had been created which, under the statute, became a fee simple in Mrs. McCormick. With this state of the record we ought hardly to be asked to convict the court below of error in holding that the trust wag a mere passive one: Morton v. Funk, 6 Pa. 483; Henry v. Zurflieh, 203 Pa. 440; Payne’s Estate, 204 Pa. 535; Lauer Brewing Company v. Chmielewski, 206 Pa. 90; Bosquet’s Estate, 206 Pa. 534; but aside from the admission of the appellants in their pleadings in the court below, if the question of the character of the trust had been there raised, the court would have been bound to hold that it was dry ' and passive. It is not to be saved as an active one on the ground of any necessity to protect a married woman or a spendthrift child, or to support contingent remainders, or to serve any other useful and lawful purpose. In Carson v. Fuhs, 131 Pa. 256, in construing a similar deed, we said what we now repeat: “The trustee in this case had no active duties to perform; it is a
If the words “and the children of the said Susan A. McCormick” are words of limitation, the estate granted to her was an absolute one under the Rule in Shelley’s Case, and the deed from herself and husband to Sarah Croup passed the fee; but these words are primarily of purchase, and not of limitation. To refer to the exhaustive learning in the innumerable cases in which this rule has been announced would be to assume that there are some in the profession who are still ignorant of it. It is sufficient to repeat what was said in Oyster v. Oyster, 100 Pa. 538: “The authorities are uniform that ‘children’ is as certainly a word of purchase as ‘heirs of the body’ are words of limitation: Guthrie’s App., 37 Pa. 9; Taylor v. Taylor, 63 Pa. 481. This is the general rule, and the exceptions which from time to time have been recognized do not impair the rule itself. There are many instances in our State where ‘children’ has been held to be a word of limitation, but in all of them such construction was clearly in accord with the intent of the testators as gathered from the four corners of the will, as when ‘children’ has been used with ‘heirs of the body’ or ‘issue’ as its synonyms.” There is nothing in