Appeal of Neale , 1884 Pa. LEXIS 7 ( 1883 )

Chief Justice Mbbcub

delivered the opinion of the court, January 7th 1884.

The main question argued in this case is -whether paragraph seven of the will of Jas. E. Brown, created a valid trust in Elwina Finley, now Linton. The devise was to her, for her sole and separate use, not to be controlled, encumbered or charged by or liable or subject in any way, to debts, contracts or engagements of any future husband of said Elwina. The will was executed on the 30th of March 1871. Elwina was then under ten years of age. She did not marry until almost eight years thereafter. It is not pretended, when the attempt was made to create this trust, that it was in immediate contemplation of marriage or of marriage with any particular person.

The law is well settled by numerous authorities that a separate use for a married woman cannot be created unless she is covert or unless in immediate contemplation of marriage: Husbands on Married Women and Trusts 314; McBride v. Smyth, 4 P. F. Smith 245; Wells v. McCall, 14 Id. 207; Snyder’s Appeal, 11 Norris 504; Phila. Trust Safe Dep. & Ins. Co.’s Appeal, 12 Id. 209. In Hamersley v. Smith, 4 Whar. 126, it is said the immediate contemplation of marriage must be with a particular person. This indicates the strictness with which the rale is held in Pennsylvania.

It is, however, contended by the appellant that conceding the will did not at the time of its execution create a trust in Elwina, yet by her marriage during the life of the testator, the trust thereby became valid.

The Act of 4th June 1879, does declare “ that every will shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. ” “ With reference to the real and personal estate comprised in it,” it must be construed to speak and take effect at the time stated. For many purposes a will speaks as of the death of the testator. For all purposes it then takes effect. The question here is not what property was devised or intended to be devised by the testator, but what estate did the language used create? At the time this will was executed there was no power in the testator to create the trust in question. It was not the intention of the Act to create a disposing power in the testator just before his death, which he did not possess when he executed his will. If he was clearly incompetent to make a will when he executed one, the fact that just before his death he became entirely competent to execute one, hut did not, it will not be claimed that the will which was of no force or effect, thereby became valid and of full force. It certainly was not the intention of the Act to strike down the estate which any beneficiary would otherwise have taken. Their title is not thereby destroyed. If the will was to speak as at the death of the testator then Elwina thereafter had no “ future husband.” She married before the death other grandfather. We do not rest the ease on that fact, but on the broad ground that the Act of 1879 does not give vitality to a previous abortive attempt to tie up an estate in a manner wholly beyond the power of the testator to do.

Decree affirmed and appeal dismissed at the costs of the appellant.