| Pa. | Mar 1, 1880
delivered the opinion of the court, March 1st 1880.
The testator gave the residue of his estate to his executors, in trust, to collect the rents, interest and income thereof, and after deducting taxes, expenses, &c., to pay the same annually, or oftener if they saw fit, to his four daughters, share and share alike, for their sole and separate maintenance and education, until, the youngest obtained the age of twenty-one years ; at which time his executors were directed to divide all his estate, then in their possession, equally between his four daughters, “ in such way and manner, however, that the same shall be for their sole and separate use-and support, and shall not in any way be liable to the control, debts or engagements of their then present or any future husband or husbands they or either of them may have.”
The testator made his will in December 1870, and died a few days thereafter. The youngest daughter attained her majority in August 1878, prior to which time one of the four was married; another, then betrothed, was married shortly afterwards, and both husbands are living. The other two daughters remained single; and as to them no question arises. It is conceded that the will was inoperative to create any trust as to their respective shares, and consequently they are entitled to take them absolutely. But, as to the married daughters, the contention is that inasmuch as the one was actually married and the other in immediate contempla
While the English doctrine appears to be, that a trust for separate use may be effectually created, notwithstanding the woman is unmarried at the time, and no particular marriage is then in contemplation, and that the trust, although suspended by the cessation of coverture, will re-attach on a subsequent marriage, it is not so with us. In McBride v. Smyth, 4 P. F. Smith 245, Mr. Justice Strong says, “ Whatever may be the rule in the English courts, it is here too well-established to be disturbed by anything else than a legislative enactment, that a separate use for a woman cannot be created unless she is covert, or unless in immediate contemplation of her marriage.” The same doctrine is re-asserted in Wells v. McCall, 14 P. F. Smith 207, where it is said, that all the cases which decide, that on the termination of coverture the trust falls and is not revived by a second marriage, prove that the marriage must be in immediate view at the time the trust is created, for if any marriage would answer to the provision for the trust, a second would as well as the first. After referring to the opposing principles underlying our doctrine of trusts, and springing, on the one hand, from the private right of the donor to control his gift; and, on the other, from that public policy which forbids restraints on alienation, it is said, that the necessary consequence of this conflict has been “a compromise which yields the doctrine of policy so far, as to enable the donor to impose a trust upon his gift when it is done in immediate contemplation of marriage.” This appears to be the utmost limit to -which this court has gone in favor of private right as against public policy, and it would perhaps be unwise to go any further. Trusts for coverture, either actual or in contemplation at the time of their creation, have some foundation in reason which cannot apply to coverture in the more remote future. In the former, the testator is presumed to know the then existing or contemplated alliance, and has the data on which to base an intelligent judgment as to the propriety of creating a trust. While in the latter, he can have nothing more than a bare possibility as a guide.
The case before us is almost identical in principle with McBride v. Smyth, supra. In that case, the testator gave his unmarried daughter an estate for her sole and separate use, to take effect when his youngest child should attain the age of twenty-one years; and it was held that the will was inoperative as to the trust, for the reason, that it was not created in immediate contemplation of marriage. In the present case, the testator directed his executors to divide his estate when his youngest daughter attained her majority, and enjoined on them to do it in such “way and manner,” as that the respective shares of each daughter should be for her sole and separate use. There is practically no distinction between the cases,
We are of opinion, that the testator’s will neither created a separate use for his daughters nor empowered his executors to do so.
The decree o’f the Orphans’ Court is reversed, at the costs of the appellees, to be paid out of the funds of the estate in their hands, and the record is remitted for further proceedings.