246 Pa. 97 | Pa. | 1914
Opinion of
The question here involved is /‘Did the trusts under the testator’s will cease upon the death, October 29,1912, of Mary Packer Cummings, the last survivor of the three children named in his will, or, as contended by the appellants, do they continue for twenty-one years from said date?”
Asa Packer died May 17, 1879, leaving a will and codicil, which were duly probated; he designated five executors, to whom he devised all his property in trust, as is more particularly shown in the abstract of the will to be found in the reporter’s notes published in connection with this opinion. The testator left to survive him a widow, who died intestate, November 17, 1882, and three children, Robert A. Packer, who died February 20, 1883, Harry E. Packer, who died February 1, 1884, and Mary Packer Cummings, who died October 29, 1912; all testate and without issue.
Shortly after the death of Mrs. Cummings, Asa Packer’s trustees filed an account embracing his residuary estate, and at the adjudication of this account, the auditing judge construed the will as showing two dominant thoughts, (1) To keep under the control of the trustees designated by the testator and their successors, all his stock and other securities of the Lehigh Valley Railroad Company and its affiliated corporations, for as long a period (within the limits of the law) as in their judgment might seem best; (2) To keep a large portion of his property in trust for the benefit of the three children named by him, and their descendants, as long as permitted by law. The trustees were given the right, however, in their discretion, to dispose of the testator’s Le-high Valley Railroad holdings; and this they did be
In an elaborate opinion sustaining the conclusion that the trust had terminated, Judge Anderson, speaking, for the Orphans’ Court in banc, so well states the views of that tribunal, that we cannot do better than to quote liberally therefrom. It is there said: “The law of Pennsylvania, following the law of England, prescribes a time limit to the power of a testator to tie up his estate; and that is during the period of a life or lives in being and twenty-one years thereafter; and it is clear that, when the testator sat down with his scrivener to. create the trusts under the will in controversy, that time was fixed in their minds as the limit beyond which they could not go; for we read in the thirty-first item of this will that this trust shall terminate twenty-one years after the death of the last survivor of his children. A trust, however, whether limited to a life or for years, will not be upheld if its purpose fail before the expiration of the life or term of years. This is well illustrated by........ Kuntzleman’s Est., 136 Pa. 142; Lee’s Est., 207 Pa. 218; Koenig’s App., 57 Pa. 352;......Woodburn’s Est., 151 Pa. 586; Coover’s App., 74 Pa. 143; McMullin v.
Mrs. Cummings, by her will, devised twenty twenty-thirds of the share of the income of the Packer estate over which she had power of appointment to the Lehigh University, for twenty-one years, and the principal at the expiration of that period; to the appellants (the trustees under her will), she devised the remaining three twenty-thirds of income, in trust for twenty-one years, to support three annuities during that period, and to pay the balance of income not necessary for this purpose to certain charities named by her, the principal to go to these charities at the termination of the trust. The appellants contend that the entire residuary estate of Asa Packer must be. held together for twenty-one years from Mrs. Cummings’ death; so that the provisions of her will may be literally carried out by them. The court below took the position that, while the children of Asa Packer were given certain powers of disposition over principal and income derived from his residuary estate, yet, their control was subject to the terms of his will, saying, “The power of appointment over income was to appoint during the life of the trust; after that the power was to appoint the same proportionate part of the principal....... There is nothing in the will, however, which contemplated the appointment of income beyond the life of the trust, and the mere fact that the appointor......can fix a time limit in her appointment of income cannot prolong the duration of the trust; being entitled to appoint the principal at the termination of the trust, she can provide, as she did, that income only shall be payable during twenty-one years. But this is not a portion of the income of testator’s whole estate, but the income from the definite share of the principal which she was entitled to appoint.
The Packer will contains no express direction that the trust in question shall continue for twenty-one years, or any other definite time; in fact, this period is only mentioned once, and that is in' the thirty-first article, where the testator directs that the trust “shall terminate twenty-one years after the death of the last surviv- or of my said three children.” When read as a whole, the will strongly suggests that the testator, having in mind the rule against perpetuities and the principle that the possibility of a conflict between it and a testamentary disposition is sufficient entirely to avoid the latter (James Est., 245 Pa. 118), inserted this provision to make sure to keep within the law. He, no doubt, desired to show express recognition of and compliance with the rule in order to avoid the possibility of conflict between it and the trust created for his “children and their children and issue.” In other words, the testator’s dominant purpose was to keep the Lehigh Valley securities under the control of his trustees and to protect his three living children and their issué for as long a time as permitted by law, — not to create a trust for the definite period of twenty-one years. The arguments against this conclusion are not convincing. In answer to those not already touched upon, we may say that, in our view, the •word “then,” , as used in the 31st paragraph of the will,
The construction adopted by the court below is not only reasonable, and in accord with the applicable principles of law and the relevant rules of interpretation, but it avoids either a partial intestacy as to one-half of the income from the decedent’s residuary estate or an invalid accumulation of such income; one or the other of which would result if the will were construed to mean that the trust under consideration must continue for twenty-one years after the death without issue of the last of the testator’s children (McBride’s Est., 152 Pa. 192; Sidall’s Est., 180 Pa. 127; Lefebvre v. D’Arcy, 236 Pa. 235). There are several appeals in this case; and for that reason we shall leave it to the court below to make a proper order covering the costs. All the points here discussed are raised by the first assignment of error; this assignment is overruled and the others are, dismissed.
The decree is affirmed; the costs to be paid by ,the appellants and others as ordered by the Orphans’ Court when the record is returned to it.