Appeal, No. 126 | Pa. | Jan 3, 1893
Opinion by-
In Erisman v. Directors, etc., 47 Pa. 509" court="Pa." date_filed="1864-05-24" href="https://app.midpage.ai/document/erisman-v-directors-of-the-poor-6232292?utm_source=webapp" opinion_id="6232292">47 Pa. 509, a gift having been made in trust for a feme covert with discretionary power in the trustee to apply any part of the trust estate for the benefit of the cestui que trust, “ if urgent necessity shall require,” this court held (1) that the discretion here given was but legal, and whenever the law determined that a proper case had arisen, in which the trustee’s discretion should have been exercised in a particular way, he would be constrained to act in accordance therewith ; and (2) that the adjudication of lunacy of the cestui que trust, and the indigence of her husband fixed the fact of “ urgent necessity,” and the consequent liability of the trust estate.
Substantially the same provision is made in Mrs. Jackson’s conveyance. She expressly gave her trustee discretionary power to use “ so much of the principal ” of the trust estate as he “ shall deem necessary for ” her “benefit;” and, in harmony therewith, reserved to herself the power of absolute testamentary disposition of the residue. Here is a legal discretion which the court might, on presentation of a proper case, have constrained for the benefit of Mrs. Jackson. That such a case was presented to the orphans’ court, in the proceedings for sale, seems clear. The adjudication that Mrs. Jackson had left unpaid debts implied that these were for necessaries, and the order of sale, that her husband was unable to pay them. This
The plaintiff has no equity to sustain her claim of title. Her grantor’s mother was the absolute owner of the land when she created the trust; and while, by her conveyance, she divested herself of the legal title and active management, its manifest purpose was to promote her own personal benefit. She expressly reserved (1) the income, (2) the right to call on the principal, in case of necessity, and (3) tho power of absoluto testamentary disposition of the residue. Thus, by the very terms of the conveyance, the whole estate could have been exhausted for her benefit in her lifetime, or bequeathed by her to a stranger. Then why should not the land have been liable for her debts ? 'Flic interest of plaintiff’s grantor was but contingent in his mother’s lifetime; and plaintiff now stands here as a mere volunteer claiming through Mrs. Jackson’s will. She does not deny that the debts, for which the land now claimed by her was sold, were Mrs. Jackson’s; her grantor was a party to the proceeding, which judicially ascertained the existence of these debts, under which sale was made for their payment, and upon the faith of which defendant became the purchaser, paid the price and took possession. As was said iu Griudrod’s Estate, 140 Pa. 161" court="Pa." date_filed="1891-02-16" href="https://app.midpage.ai/document/estate-of-grindrod-6240292?utm_source=webapp" opinion_id="6240292">140 Pa. 161 : “Something is due to the finality of judgments. The orphans’ court, after such a lapse of time (10 years), has no power, unless, perhaps, in the case of a fraud practiced upon it, to set aside the sale and vacate its own decree. If it might do so after ten years it might do so after a hundred.” Here thirty years have elapsed since the sale made under the order of the orphans’ court, and the record so made remains unimpeached. If it is unimpeachable by direct application to the orphans’ court, much less can it be nullified by collateral attack. The plaintiff’s grantor had his day in the orphans’ court, and his grantee, the plaintiff, is thereby estopped from claiming title as against this defendant.
This view renders unnecessary any discussion of the question upon which the argument of counsel mainly turned, whether or not a feme covert can by voluntary conveyance exempt lier separate estate from her debts thereafter created.
Judgment affirmed.