Deibert's Appeal , 1875 Pa. LEXIS 134 ( 1875 )

Mr. Justice Siiarswood

delivered the opinion of the court, October 12th 1875.

This case is not to be distinguished from Earp’s Appeal, 25 P. F. Smith 119, and Ashhurst’s Appeal, 27 Id. 464. The corpus or legal title is in the trustee: “ I appoint my brother, Reuben Deibert, as trustee over my goods, and he shall hold all moneys in hand and take care-of the same and the interest.” What is given to the two children is merely 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 ho bequest over, it might be said that the absolute bequest of the interest would carry the principal, as a devise of the rents and profits does the land. But here this consequence is precluded by the direct provision of the will; an expression of the intention of the testator which, as it is perfectly lawful, cannot be disregarded. He says : “If my appointed trustee shall see proper he shall give them (the children) part of the principal sum.” It is evidently implied that they are not to have the whole, but only such part as the trustee saw fit. That is submitted to his discretion. The trust must be upheld as an active one to effectuate this intention.

Decree reversed, and record remitted that a decree may be entered below conformably to this opinion. The costs of this appeal to be borne by the estate.