Davis's Appeal , 1882 Pa. LEXIS 43 ( 1882 )

Mr. Justice Green

delivered the opinion of the court April 24th 1882.

The very able argument of the learned counsel for the appellant has not convinced us of any error in the decree of the court below. Under the will of John Davis, Sr., the trustee was not the mere recipient, and passive, holder, of the legal title, without duties to perform. The entire principal of the estate was to be securely invested and so remain during the lives of all the children, and the two grand-children, and the income to be paid to them in equal shares. Upon the death of anyone of the children or grandchildren, those who survived were to receive the entire income of the fund, and when all were dead the fund itself was to be given to the lawful heirs of the testator. Who the lawful heirs of the testator may be, is of course very uncertain, but they cannot possibly be any of those who are to receive the income of the fund, because these must all be dead before the gift over can take effect. There is, therefore, a duty to preserve the estate, in order that it may be divideef amongst those who are entitled after all who have received the income shall have died. Moreover this duty is absolute. It is not in any sense discretionary with the trustee. Nor is there any power of disposal by will vested in the cestuis quo trust for life. And in addition to this there is a previous estate for life in the widow, in the entire estate of the decedent real and personal. The lawful heirs of the testator are not necessarily, by any means, the same persons as the lawful heirs of his children and grandchildren. In all these respects the case differs from those in which the rule prevails that the gift of the produce of a fund is the gift of the fund itself. That rule is very carefully stated by the present Chief Justice in Keene’s Appeal, 14 P. F. S. on p. 274, thus: “ It is unquestionably a well settled rule that although the interest only of a fund be bequeathed, yet if the bequest be indefinite and without an ultimate limitation over, it will carry the principle absolutely.” As stated by Mr. Justice Kennedy in Hellmans v. Hellman, 4 Rawle 450, it is subjected to the expression of a contrary intention by the testator. Thus Kennedy, J., says : “ Prima facie a gift of the produce of a fund is a gift of that produce in perpetuity ; and it is consequently a gift of the fund itself, .unless there is something upon the face of the will to show that such was not the intention.” In Keene’s Appeal the limitation over, although to the lawful issue of the legatees of the interest, ivas held a sufficient expression of an intention that the brothers were to take for life only. In the present case the testator expressly directs that upon the death of one or more of the grandchildren, those who remain shall take the whole of the.interest in equal shares, and this process is to continue until all are dead. This is a clear limitation of the right to the interest during the lives of the children and grand-children in succession until all are dead, and excludes the idea of an absolute estate in the principal in the whole body of the legatees. If such an estate were to pass it would defeat the right of the survivors in succession, of those who died, to the whole of the interest, and thus work a result contrary to the express words of the bequest. But there is beyond this a limitation over after tlie death of all the legatees of the interest, of the whole principal of the fund, to a well defined class of persons who can readily be ascertained. If the cintren and grandchildren die leaving lineal descendants, such descendants will be the lawful heirs of the testator. But if they all die without leaving any descendants, then the fund, being personal estate, goes, not to the next of kin of the children and grandchildren, which would include relations on the mother’s side, but, by force of the limitation of the will, only to such of the next’of kin, as would inherit from the father. It is clear then, that in order to preserve the estate for the uncertain persons who are to take it after the death of all the legatees for life, it is necessary to continue the legal estate in the trustee to enable him to perform his duties. In Bacon’s Appeal, 7 P. F. S. 504, the subject of the trust was real estate which was given to trustees, who were to receive the rents and income thereof, and pay it over to the daughters during life and'after the death of the daughters and their husbands to convey it to the right heirs of the daughters in fee. On p. 512 Strong, J., said: “Had the trust no other object than the special one of protecting the property for the separate use of the daughters, it might have been left as it was first constituted. The imposition of a duty to receive and pay over the income would have been needless. But the injunction of active duties during the life of each daughter evinces a purpose begun, that of maintaining separate uses. It .involved the necessity of management and care of the real estate, and of preservation for those entitled in remainder ... So long as active duties remain to be performed by the trustees, the legal estate must continue in them to enable the performance.” This being true of real estate which is permanent and enduring and requires no change, it is still more true of a trust fund which consists of securities only (in this case stocks and bonds) requiring constant care and watchfulness, and possibly frequent changes. It is absolutely essential in such a case if the trust is to be performed at all, that the estate of the trustee should be continued until the trust itself has expired by the limitations of the will. It is almost needless to add that the interest of the legatees for life is an equitable one, and that of those in remainder a legal one, since as to the latter nothing is to be done but to divide among them the principal of the fund.

On the subject of commissions we see no sufficient reason for interfering with the action of the auditing judge and the Orphans’ Court. In view of all the circumstances it is not clear that the amount allowed was unreasonable.

Decree affirmed at the cost of the appellant.