154 Pa. 316 | Pa. | 1893
Opinion by
At the time of the death of F. R. Weed in 1882, he was conducting a general store at Trout Run, and a general lumber business and a banking business at Williamsport. By his will he created a trust to continue them. The trustee was Mills B. Weed, to whom for the purposes of the trust he devised all his estate, real and personal. The powers of the trustee over it are clearly set forth in the will creating the trust. The words are: “ He shall possess, hold and manage the same, and conduct and carry on business and trade, barter, buy and sell in and for all things that may pertain to said estate, its business or its products, and make such investments of the property, real, personal and mixed, as he may deem best for the interests of the trust hereby created, and if he shall at any time deem it advisable or for the benefit of the trust hereby created that the said property hereby devised should be sold or ai^r part of it., then I do hereby authorize and empower him to sell the same and make a title to the purchaser in fee simple, and with the proceeds of such sale I do authorize and empower the said Mills B. Weed to make such other investments, real and personal, or commence, conduct and carry on such other business for the benefit of the
It is manifest that Mills B. Weed, as trustee, had no power to execute this deed. It was not for the benefit of the trust. It was not executed for the purpose of the trust, and there were no proceeds from it to reinvest. It was not given for a valuable consideration. By the act of February 24, 1834, section 24, Purdon, 525, P. L. 77, it is enacted, “No debts of a decedent except they be secured by mortgage or judgment shall remain a lien on the real estate of such decedent longer than five years after the decease of such debtor, unless an ao
It is however contended that the confession of judgment and the conveyance in question operated as a waiver of the limitation of the act of 1834. ' Wallace’s Appeal, 5 Pa. 106, is relied upon to sustain this position. In that case all the parties, heirs, widow and administrators, united in an agreement that the claim in question should not be affected by the operation of the statute. It was said in that case: “ It is a principle of common application that one upon whom the law confers a ■benefit may relinquish it provided he in doing so inflicts no injuiy upon the rights of others.” In the present case the lien upon the property in question had expired by operation of lav/, and Mills B. Weed as trustee held it free from it for the benefit of the trust estate. The estate being insolvent and the rights of creditors in consequence of it having intervened, he had no right as a trustee to waive the operation of the statute and thus restore the lien. As the title to this property had vested in the trustee free from the lien of this debt, as the rights of creditors to it as part of the trust estate had intervened, a confession of judgment by him as executor could not re-establish this lien that had ceased to exist against it.
It has been ably argued that Mills B. Weed was not a trustee for creditors, and the appellee having acquired no lien against the real estate at the time of the conveyance is not in a position to question it. The master finds as facts that the estate at that time was insolvent and also the trustee was insolvent.
The deed to appellants refers to the will of F. R. Weed, deceased, and recites fully the trust therein created. The appellants therefore are not purchasers without notice, were put upon inquiry and had full notice. It is said in Garrard v. R. R., 29 Pa. 158: “ Where a purchaser cannot make out a title but by a deed which leads him to another fact, he shall be presumed to have knowledge of that fact. So he is supposed to have knowledge of the instrument under which the party with whom he contracts as executor or trustee or appointee derives his power.” As the appellants are not purchasers for a valuable consideration and took the propert}r with full notice, equity will follow it in their hands: Petrie v. Clark, 11 S. & R. 377. Such being the case, the decree is affirmed, and the appeals are dismissed at cost of appellants.