93 Pa. 209 | Pa. | 1880
delivered the opinion of the court, May 3d 1880.
This contention arises under the will of Thomas Armstrong. It declares, “ I give and devise to my son Edward all that house and lot of ground, with the appurtenances adjoining the south side of my said dwelling-house, to hold to him, his heirs and assigns, to and for the uses, intents and purposes hereinafter expressed and declared of and concerning the same; that is to say, in trust that he shall and will permit my daughter Henrietta to receive the rents thereof for her sole use during her lifetime, to the intent that the same shall not be liable to the contracts or control of any husband with whom she may intermarry, and from and immediately after her decease, then to the heirs of the body of the said Henrietta lawfully begotten; but in ease the said Henrietta should not marry, or marry and have no such issue, then upon trust that he, the said Edward, and his heirs, executors or administrators, shall and will grant and convey the fee-simple inheritance
Edward, the trustee named, having died, the appellant was appointed in his place by the Orphans’ Court. The real estate, by virtue of a decree of said court, was sold at private sale under the Act of Assembly. The record of the proceedings declared that the purchaser should take an estate in fee-simple, discharged of all trusts, contingent remainder and executory devise limited thereon. Henrietta, the appellee, also executed to the purchaser a deed intended to bar the entail. On motion in open court, it was duly entered of record in the Common Pleas of said county. The purchase-money was received by the appellant. The appellee filed this bill praying for a decree that, under the will, she took an absolute legal estate in fee in the real estate, and that the appellant be required to assign and pay over to her the proceeds of the sale thereof. The court decreed in accordance with her prayer.
We will first consider the character of the trust created by the will. Its language substantially is, in trust that the trustee shall permit Henrietta to receive the rents thereof for her sole use during her life ; and the intent of the trust is declared to be, that the property shall not be liable to the contracts or control of any husband she may thereafter have. No care or duty was imposed on the trustee in regard to the management or protection of the property, nor as to the collection or payment of the rents. He had no active duties to perform. It was a dry trust. The purpose was to create a separate use in Henrietta. She was sui juris. She took the whole beneficial interest devised to her. Her estate, as well as that given in remainder, were both legal, for the trust was executed under the statute: Physick’s Appeal, 14 Wright 128; Nice’s Appeal, Id. 143; Ogden’s Appeal, 20 P. F. Smith 501; Megargee v. Naglee, 14 Id. 216; Kinsel v. Ramey, 6 Norris 248. The mere fact that on a certain contingency, which might never happen, the trustee was directed to execute a conveyance after her death to her devisees, did not change the dry character of the trust and make it active: Bradley’s Appeal, 36 Leg. Int. 38. Still further, Henrietta was neither married nor contemplating marriage at the death of the testator. She never married. The expressed purpose of the trust being solely to protect against any husband she might have, it cannot* be sustained. A separate use for a woman cannot be created unless she is covert,
What estate, then, did Henrietta take ? It was given to her for life, and the remainder expressly limited to the heirs of her body lawfully begotten. These are the proper and technical words to create an estate tail. They must have their legal effect, whatever the testator may have intended: Bender et al. v. Fleurie, 2 Grant 345; Linn v. Alexander, 9 P. F. Smith 43; Taylor v. Taylor, 13 Id. 481. Ho words in the will changed or qualified the legal import of this language. An estate tail was thereby created. It was duly barred by the conveyance, and the learned judge correctly decreed in favor of the appellee.
Decree affirmed, and appeal dismissed at the costs of the appellant.
