230 Pa. 426 | Pa. | 1911
Opinion by
In this appeal, counsel for Mrs. Annie R. Phillipi, contend that the orphans’ court erred in its decree directing her to convey certain real estate to the administrator d. b. n. c. t. a. of her father’s estate, and in requiring her to pay to him the proceeds of a certain mortgage, which it was alleged had been transferred to her from the estate, without consideration. It appears from the record that William Sheaffer died December 28, 1905, leaving a will in which his son George and his wife Catherine were appointed executor and executrix. The will was probated January 4, 1906, and letters testamentary issued the same day. To the widow, Catherine Sheaffer, was given the income of the estate for her life, and she and George Sheaffer were made trustees with power to sell or lease the real estate, and dispose of the personal property, at their discretion, and to reinvest the funds. The testator provided that if at the death of his wife, Catherine Sheaffer, his son William Sheaffer should then be living, the sum of $12,000 should be given to George Sheaffer in trust, to pay the net income therefrom to William Sheaffer, during the term of his natural life, and at his death the principal to be divided among the other children of the testator living at such time. The residue of his estate he gave to his sons George and Harry, and to his daughter Annie Phillipi, their heirs and assigns forever. But he directed that the share of his daughter should be held in trust by his son George, as long as she remained the wife of Benton Phillipi. Full control of the trust fund was given to the trustee, George Sheaffer, to reinvest it, and collect the income and pay it over for the use and benefit of William Sheaffer, Jr., and for
In the year 1907, George Sheaffer, and his mother Catherine Sheaffer, acting under the authority in the will, purchased a piece of real estate. This property was afterwards conveyed to one William Taylor, the father-in-law of George Sheaffer, for what purported to be a consideration of $24,000. On January 28, 1908, a quitclaim deed for this property was made to William Taylor, by George Sheaffer and Catherine Sheaffer, executors and trustees under the will of William Sheaffer, and as individuals, by George Sheaffer and his wife, Harry Sheaffer and his wife, and Annie Phillipi and her husband, Benton Phillipi. On March 5, 1908, a receipt was given to Annie Phillipi by George Sheaffer and Catherine Sheaf-fer, executors, for the sum of $5,000 in payment for a mortgage of that amount which was transferred to her, and which she subsequently satisfied of record.
William Taylor executed a mortgage for the sum of $10,000 upon the real estate which had been transferred to him, and afterwards conveyed the property to Annie Phillipi for the stated consideration of $24,000, being the same amount as that set forth in the deed to him. The court below found that in fact no consideration was paid by William Taylor for the property, and none was paid to him when he transferred it to Annie Phillipi. Part of the sum of $10,000 which was obtained by the execution of the mortgage by William Taylor was used to discharge a prior mortgage of $4,800, assumed in the purchase of the property, and the balance was used in the payment of the contractors, for the building of á house upon the lot.
It appears from the petition that Catherine Sheaffer, executrix and trustee as aforesaid, died on January 31, 1909; and that George Sheaffer, the sole surviving trustee
As to the separate use trust created by the will of William Sheaffer for the benefit of Annie R. Phillipi, that could not be set aside or affected by any conveyance, or agreement, or act of herself and her husband. In MacConnell v. Lindsay, 131 Pa. 476, Mr. Justice Clark said (p. 486): “The rule is now well settled that neither the feme-covert, nor her husband, nor both together, have any powers over her separate estate, except what are given by the trust instrument, and that even these must be strictly construed.”
In Holliday v. Hively, 198 Pa. 335, Mr. Justice Brown said (p. 341): “If anything in the law may be regarded as settled, it is that a feme-covert, as to her separate estate, has no power of disposition beyond what is conferred upon her in the instrument creating the trust.”
The trust fund for William Sheaffer, Jr., was to be $12,000, and that for Mrs. Phillipi one-third of the residue of the estate. The amount of the residue does not appear, even approximately, from either the bill and answer or the evidence. The testimony showed that the estate had a decree against George Sheaffer for $32,498.43. It does not appear whether this is collectible or not; but, as George Sheaffer is entitled to one-third of the residue, as well as a remainder interest in the fund to be held for the benefit of William Sheaffer, Jr., it would seem probable that at least a part of the award can be collected from him. The estate also owns other real estate, as appears from the testimony; but the value of such real estate was not shown. Mr. Stengel testified: “[It] is very difficult to say what the assets amount to; it depends on what this real estate is worth; the assets of the estate amount to much more than thé indebtedness.”
There is no other evidence as to either the liabilities or the property of the estate.. We do not regard this testimony as sufficient to justify the decree of the court
An administrator d. b. n. c. t. a. has no power to execute a trust reposed in executors under a will, not connected with the office of executor, but reposed in them as trustees: Ebert’s App., 9 Watts, 300; Ross v. Barclay, 18 Pa. 179; Gehr v. McDowell, 206 Pa. 100. If in this case the return of the property by Mrs. Phillipi was necessary in order to pay debts of the estate, that fact should have been shown affirmatively and clearly.
As the record in this case now stands, we are of opinion that the decree should require Mrs. Annie Phillipi to restore the property in question to the trustee appointed to protect the estate of Mrs. Phillipi and of her brother William Sheaffer; and not to the administrator d. b. n. c. t. a. of the father.
With that modification, the decree of the orphans’ court is affirmed.