23 Pa. Super. 639 | Pa. Super. Ct. | 1903
Opinion by
The distinction between passive and active trusts is well settled. A trust is passive when the trustee has no duty to perform, or when the trust serves no purpose, or none that would not be equally served without it. An illustration of this is a conveyance to A to the use of B. Here A is charged with no duty, and no purpose is served by investing him with the legal title that would not be equally served by placing the title
The case before us arises under the following provision of the will of Mary St. John: “I give and devise to James A. Flaherty my real estate situate at No. 1314 Stiles street, in the city of Philadelphia, to hold the same in trust for the following purpose, to keep the house as a home for my two nieces, Julia V. Naughton and Adelaide Connor, so long as in his judgment and discretion they can live together therein in peace and concord. The taxes, water rent and repairs of said property to be provided for and paid by my said nieces. If in the judgment and discretion of my said trustee it will be for the best interest of said nieces and estate to sell and dispose of said property, then I authorize and empower him to sell the property at private or public sale for such price or sum as he may deem adequate therefor, without any liability on the part of the purchaser to see to the application of the purchase money and free and discharged from any trust; and when said property shall be sold the proceeds thereof shall be divided equally between my said two nieces. If one shall be deceased at the time of such distribution then the whole sum shall be paid over to the survivor.”
The question involved in the case is whether the nieces have such an estate in the property devised that one of them can demand partition of it.
Among the essentials of such an estate are the right of
Another reason why one of the tenants in common in this case cannot demand partition is that this would defeat the contingent right of survivorship given by the will. Upon a partition, each niece would take a purpart to be held in severalty, and freed from all claim by the other; a result not contemplated by the will. Should either die before the trustee considers it for the best interest of the nieces, and of the estate, to sell the property, the survivor is, by the provisions of the will, entitled to the whole.
While the nieces may occupy the property under the conditions fixed by the testatrix, the fee is not given to them, and apart from their qualified right of occupancy they have no interest in it as land. The will vests the fee in the trustee, for the purposes therein set forth, with no other limitation, and with no provision for divesting it except through a sale, to be made by himself at his own discretion. It contemplates no division of the property as land, and its purposes require that
While the trustee has no active duties to perform with respect to the land, while it remains unsold, and forms a home for the nieces, he is charged with a discretion with respect to their occupancy, with the duty of making sale for the purpose of distribution, and with a discretion as to the time and manner of sale. Duties and discretionary powers of this character are sufficient to create an active trust. Such a trust is obviously necessary in order to carry out the intent of the testatrix as plainly expressed in the will. And the conveyance of her interest to a stranger, by one of the nieces, may indicate to the trustee a lack of the concord which the testatrix deemed essential to their occupancy, and lead him to regard a sale, pursuant to the will, as for their best interests and for the interest of the estate.
The decree overruling the demurrer is reversed, and the bill is dismissed, the costs to be paid by the appellee.