Scott v. Bryan

194 Pa. 41 | Pa. | 1899

Opinion by

Mr. Justice Mitchell,

The general rule in determining the validity of the execution of powers is that the intention of the donee to execute is the turning point. Such intent will not be presumed from the mere grant of a larger estate than the grantor possessed, but it may be gathered from such grant coupled with other evidence of intent, such, as a description of the subject of the power sufficient to identify it: Bingham’s App., 64 Pa. B45. In the present case the subject of the power is fully described, and the will of the testator referred to, though not the power itself. The reference to the will it is true is in the recital of title, but it is evidence nevertheless that the will and the donee’s power under it were in her mind when making the deed, and in connection with the fact of conveyance in fee with general warranty evinces the intent to execute the power. It is a stronger case on this point than McCreary v. Bomberger, 151 Pa. 323, where the evidence was held to be abundant.

But there is another ground on which the execution of the power must also be sustained. The grantor in the deed had no estate which she could convey, and therefore her deed could not be made operative except as an execution of the power. Under all the cases this is conclusive evidence of her intent to exercise the power: Wetherill v. Wetherill, 18 Pa. 265; Bingham’s App., 64 Pa. 349.

The land was devised to Mrs. Scott “ as her own separate estate.” This- is sufficient to indicate the intention of the testator. In Jamison v. Brady, 6 S. & R. 466, it was held that the words “for her own use” created a technical separate use, Tilg-hman, C. J., saying, “ The addition of the words for her own use is tantamount to saying, not for the use of the husband, because if it was for his use it could not be for her own use.” The only reasonable interpretation therefore of the testator’s use of the words “her own separate estate,” is that he intended to create the estate technically known as one in trust to her separate use. Where such intent is clear no particular form of words is necessary: Heck v. Clippenger, 5 Pa. 385; Steinmetz’s Est., Duffield’s App., 168 Pa. 171. Such an estate is not alienable by deed of the cestui que trust, even with the joinder of her husband: Hays v. Leonard, 155 Pa. 474; Lewis v. Bryce, 187 Pa. 362. Mrs. Scott’s deed to McCoy, therefore, could have no legal effect except as an exercise of the power under Linhart’s will, and this as already said brings it within the settled rule that sustains the intent to execute the power.

Judgment reversed and judgment directed to be entered for the plaintiff on the case stated.