8 Watts 236 | Pa. | 1839
The opinion of the Court was delivered by
The testator having five children, makes two of them executors, and being earnestly desirous that his children should live together until the youngest should arrive at twenty-one, in order to effect this object gives the entire use of all his real and personal property to these executors until that time, and directs that all emoluments arising from the property, after the payment of family expenses, should be to the use of his executors until that time. This is a trust coupled with a beneficial interest; a trust to keep the family together, and defray its expenses out of the estate, with a right in the executors to take what remained for their own use. The trust in its terms is confined to the executors themselves, and not limited over to their executors or representatives. Chancery will sometimes enlarge the duration of a trust estate, in order to carry into effect the purposes of the testator. But here the purpose which is declared to be to keep the family together, has failed by the events which have happened. The children are now all deceased except John, and he is provided for as to care and expenses by being bound to a trade, and the appointment of a guardian. The trustees, in whom this peculiar confidence was reposed, probably because they were children of the testator, and brothers of the cestui que trusts, have also passed away. So that both the burthen of the duty and the right to enjoy the beneficial interest, are at an end by the casualties that have happened. The children of deceased children are not mentioned in the will as persons who are to participate in this temporary beneficial interest given to the sons, who were appointed executors; nor could they, from their age, perform the trust. We therefore think the opinion of the court below right: that John takes the whole of the remaining interest in this land from the decease of the surviving executor, till his arrival at twenty-one, as the only one of the children of the testator remaining, for whose use the bequest was originally provided.
Judgment affirmed.
