Shoemaker's Appeal , 1879 Pa. LEXIS 307 ( 1879 )

Mr. Justice Sterrett

delivered the opinion of the court,

The legacy to appellant, as given in the body of the will, is without any restriction or limitation; but, in the codicil the testator directs “that as my daughter Sarah Catharine has been deprived of the use of her hearing, it is 'my will that the said Abraham Grove shall act as her guardian and agent, and I do hereby constitute and appoint him* as such, to take charge of all her interest in my estate and to manage the same to the best advantage, and to settle with her annually from and after she arrives at the age of twenty-one years, without the form of filing any account in the Orphans’ Court, it being understood that said Grove is to be allowed for his services not exceeding one per cent, on his accounts so settled; and it being further understood that said Grove may at any time he may deem it proper and just resign the guardianship and agency hereby put upon him.”

The reason assigned by the testator for appointing a “ guardian and agent” for his daughter is her deafness. At the date of the codicil she was also a minor, and that fact no doubt suggested the guardianship with which he coupled the agency, designed to be operative when she attained her majority. It may be that he intended Mr. Grove should act simply as the business manager or agent of his daughter, and thus have control of so much only of her estate as she chose to leave in his hands, but the language employed is expressive of a different intent. It appears to have been the testator’s wish that Mr. Grove, whom he selected as one of his executors, should retain and assume control of all her interest in his estate and manage the same to the best advantage. In view of his daughter’s deafness he evidently thought that Mr. Grove could manage her business to better advantage than she could. The duties he was expected to perform, so long as he thought proper to discharge them, were of an active nature, and hence the trust cannot be considered a passive one. Assuming then that an active trust for the purpose of investment and general management was coupled with appellant’s legacy, was it designed to be a permanent and continuing trust, or was it temporary, one of strictly personal confidence in his'son-in-law, and limited in duration, at most, to the time he should consider it expedient to serve? We are of opinion it was the latter, and since Mr. Grove has deemed it “proper and just,” to resign the guardianship and agency with which he was clothed by the testator, the special trust reposed in him has expired and the appellant is entitled to the custody and exclusive control of her estate.

There is no provision in the will for any succession in the trust, nor anything to indicate that the testator contemplated the appointment of a successor in case Mr. Grove declined to act or resigned. There is no intimation of any purpose to protect the testator’s bounty to his daughter against her improvidence or the control of a future husband; nor to pass the corpus of the legacy or any part thereof over to her children or any one else. It is given absolutely and unconditionally to her, subject only to the power of management vested in Mr. Grove by the codicil. The scope of the trust is defined and restricted to Mr. Grove and its duration is limited by distinctly providing that he may resign and thus end the trust “ at any time he may deem it proper and just.” The supervision of the agency was given to the legatee by requiring an annual settlement with her personally after she attained her majority. The agent was thus made directly accountable to her alone “ without the form of filing any account in the Orphans’ Court.’’jp Whatever else may have been in the mind of the testator when he executed the codicil these provisions indicate that the trust relation which he intended to create was strictly a personal one, to continue only so long as his appointee deemed it proper to serve.

While the language employed by the testator might perhaps be susceptible of a different construction, the one we have adopted appears to accord best with the intention of the testator as we are enabled to gather it from the provisions of his will.

The decree of the Orphans’ Court is reversed, at the costs of the appellee to be paid out of the funds in his hands; and it is now ordered and decreed that the appellee upon settlement of his account do forthwith pay over to the appellant the balance that may be found in his hands, less costs..