Van Blunk Estate , 275 Pa. 589 ( 1923 )

Per Curiam,

The question before us is, Did testator create a sole and separate use trust for the person named in the devise quoted below? The orphans’ court held that he did, and this appeal followed.

Notwithstanding the interesting argument of counsel for appellant, we are not convinced of error; the decree is affirmed on the following excerpts from the opinion of the auditing judge: “Francis C. Van Blunk died on April 18, 1918, leaving a will, by the third paragraph of which he provided: ‘I give and devise unto my niece, Catharine Welbank, wife of Charles Welbank, her heirs and assigns forever, for her sole and separate use, free and discharged from any and all control of her said husband, and of any curtesy or other interest therein on the part of her said husband, my house and lot of ground No. 1623 South Broad Street, Philadelphia......In event of my selling or disposing of my said house in my lifetime, then, in lieu thereof, I give and bequeath unto my said niece, absolutely, a sum equal to the price or sum for which I shall have sold or disposed of it.’

“Catharine or Kathryn E. Welbank is living, and is the wife of Charles T. Welbank, who is also living.

“By a decree of [the orphans’ court] entered November 28, 1921, Joseph P. Bartilucci was appointed trustee for Catharine Welbank, of premises 1623 South Broad Street1, and was authorized to sell the same to Peter D’Ambrosio for $12,500, in accordance with the provisions of the Revised Price Act, which decree was duly complied with, and this account is filed of the proceeds of sale.

“Mr. [Theodore Cuyler] Patterson, in behalf of Mrs. Welbank, asked that the fund should be awarded to her. The devise contained in the will of the testator is to 'Catharine Welbank, wife of Charles Welbank, her heirs and assigns forever, for her sole and separate use, free and discharged from any and all control of her said husband and of any curtesy or other interest therein on the part of her said husband,’ which are apt words for the creation of a married woman’s sole and separate use [trust1]. Mr. Patterson called attention to the further provision of the third paragraph, in which the testator, in case he should sell this real estate in his lifetime, bequeathed to Mrs. Welbank, absolutely, a sum equal to the price received, [also to] certain other provisions in the will for devisee’s benefit, which are absolute in their nature......[and] argued that, from the whole tenor of the will, the testator did not intend to subject this devise to a trust by the mere employment of the technical words ‘sole and separate use.’ [The court below thought otherwise, saying, particularly as to the matter in the third paragraph, above referred to:] It need only be added that the bequest to Mrs. Welbank of the proceeds of sale,, if such sale were made by the testator himself, has manifestly no effect upon the specific devise of the property where no such sale has been made, and the absence of an appointment of a trustee for Mrs. Welbank is immaterial, for it is the duty of the court to protect her separate use by appointing a trustee as was done in this case.------Clearly the trust continues during the coverture of Mrs. Welbank, and the fund must be retained by the accountant as her trustee.”

The decree is affirmed; costs to be paid out of the fund.