211 Pa. 297 | Pa. | 1905
Opinion by
By his will dated February 6, 1873, and probated October 19, 1878, Frederick A. Shower gave the income from the residue of his estate, after the payment of debts and funeral expenses, to his wife, Elizabeth, for life, subject to the maintenance and burial of his two sisters. He then directed his executor to have a trustee appointed for his son, Frederick A. Shower, and his two daughters, Sarah E. Baxter and Clara Shirk, and provided further as follows: “ After the death of my wife, Elizabeth, I direct all my estate then remaining to be divided equally between all my children share and share alike; the trustee or trustees appointed as before provided to receive in trust for my son Frederick and daughters Sarah and Clara before named the share to which each may be entitled respectively and to invest the same as he or they may deem most safe and profitable for my children above named in conformity, nevertheless, with the laws of Pennsylvania regulating and directing the investments and security of the moneys wherein infants or minors have an interest, and further direct the trustee or trustees so to control the shares of my three above named children and the investments thereof that they, my son Frederick and my daughters Sarah and Clara may enjoy the interest thereof only but in no way impair or diminish the principal. ” The testator appointed an executor and authorized him to make such changes in his investments as he deemed proper and to make sufficient deeds for the conveyance of any or all of his real estate and “ enjoined him carefully to observe that the trustee or trustees as also the surety or sureties for them continue to be responsible and their estates available for the value of the trust estate reposed on them. ” By a codicil dated September 11, 1874, the testator directs that the share of his estate to which his son, George, who died after the execution of the will, would have been entitled shall be invested by the trustee of his other children and the interest of such investment shall be used for the nurture and education of George’s child, and in case the child should die unmarried and without issue, its share shall be divided between testator’s other children subject to the same trust provisions as were imposed on their other interests in his estate.
The testator left to survive him his wife, Elizabeth, and
By an adjudication of the first account of the trustee, filed May 11, 1880, the residue of the testator’s estate was awarded to the widow for life charged with the payment of the annuities to the testator’s sisters, in accordance with the provisions of the will of the deceased. By the death of the widow, the principal of the estate became distributable and the trustee filed another account which was called for audit on May 5, 1904. At the audit it was claimed by the three children of the testator that the trust was a dry or executed trust and that they were 'entitled to have possession of the corpus of their shares of the fund for distribution. The auditing judge held, however, that the trust was a valid, active trust and awarded the principal of the fund to the accountant in trust for the children. Exceptions to the adjudication were dismissed by the court below and from that decree this appeal was taken by the three children.
It is too plain for argument that unless we disregard the intention of the founder, clearly expressed in his will, we must sustain this trust. The language employed as well as the whole scheme of distribution of his estate as disclosed by the entire will shows conclusively that the three children of the testator, who are the appellants here, were not to have an unrestricted or absolute interest in their shares of his • estate. His first thoughts were of his wife and he provides for her. She is given the entire estate for life, subject to the payment of his debts and certain annuities to his sisters. No limitation or restriction whatever is placed upon her interest in the estate, but she was “to enjoy the rents, issues and profits of my real estate and the interest and dividends on all my investments.” Before the testator makes any disposition of the residue of his estate after giving a life interest to his wife, he clearly discloses in the next paragraph of his will the fact that for some reason, entertained by him, he regarded three of his four children as incapacitated for the successful control and manage
It is settled’by our cases that an estate of inheritance in real estate or an absolute interest in personalty given in a will may be reduced to a lesser estate if the subsequent language of the instrument unequivocally shows that such was the intention of the testator. “No principle is better settled,” says Strong, J., in Sheet’s Estate, 52 Pa. 257, “than that if a testator in one part of his will give to a person an estate of
The appellants contend that as there is no limitation over of the principal and they are all sui juris, they are entitled to the whole beneficial interest or corpus of their shares of the estate, and that there is nothing in the will which can be construed so as to make a spendthrift trust. We concede the rule invoked by the,,appellants that a gift of the income of an estate with no limitation over of the principal is an absolute gift of the property or fund itself. Its application, however, in any particular instance necessarily depends upon the fact whether the testator has employed language in a subsequent part of his will which renders the rule inoperative'. Such is the case here. The testator has explicitly disclaimed the intention of giving the corpus of the estate to the children by declaring that they may enjoy the interest only and in no way diminish the principal. Hence, the rule can have no:-application here, as it would defeat the intention of the testator clearly disclosed by the language of the will. Nor is the fact that there is no limitation over of the principal sufficient to control the quantum of the estate in the cestuis que trust: Deibert’s Appeal, 78 Pa. 296; Krebs’s Estate, 184 Pa. 222; Frantz v. Race, 205 Pa. 150. The intention of the testator here to negative the idea that the whole beneficial interest or corpus of the estate was given the cestuis que trust is as clearly disclosed as in Deibert’s Appeal where the court speaking through Shakswood, J., says: “ What is given to the two children is simply the interest; ‘they shall yearly draw the interest.’ Some doubt might arise if the case rested there; for as the estate of the beneficiaries is not expressed to be for life, and there is no bequest over, it might be said that the absolute bequest of the
Our conclusion antagonizes none of the decisions of this court and is supported by the two recent cases of Krebs’s Estate, 184 Pa. 222, and Minnich’s Estate, 206 Pa. 405. In the former, the testator after having given a life estate to his wife, gave all his property real and personal in equal shares to his children “ with the condition that George J. Krebs (a son) shall only receive the interest of his share, or as much as in times of sickness or accident my executor will give him to meet his wants.” There was no gift over of the principal of George’s share. It was held, however, that the trust in respect of it was active and the petition to dismiss the trustee was refused. It was also held, as in Sheet’s Estate, 52 Pa. 257, that if a testator in one part of his will gives to a person an estate of inheritance of land, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. In Minnich’s Estate, a son’s share of the estate was given to a trustee to invest, and if in real estate to permit him to occupy it, and to pay the taxes and repairs if the son failed to do so, with the provision that the income was not to be in anywise liable for any debts owing by the son nor for any debts that might thereafter be contracted by him. There was no gift over of the real estate, but it was held that a spendthrift trust was created which could not be allowed to be defeated by delivering the corpus of the estate to the cestui que trust.
While the phraseology employed by the testator in defining the interest or estate given the cestuis que trust lacks some of the characteristics of a spendthrift trust, yet we think the language of the will, as pointed out above, conveys a clear intention to make the gift available solely for their own personal enjoyment without the right of anticipation or liability to creditors. Where such appears in the will to the manifest intention of the testator, a spendthrift trust will be sustained, although the testator has not provided in terms that the estate of the
W.e are of opinion that Frederick A. Shower by his will limited and restricted the use of the estate he gave his three children so that they could enjoy only the income thereof and without the right of anticipation and not subject to the claims of their creditors in the hands of the trustee. It is, therefore, necessary in order to carry out the intention of the testator that the corpus of the estate given the cestui que trust remain in the possession and control of the trustee, and hence, the trust is active and must be continued.
The assignments of error are overruled and the decree is affirmed.