Steinmetz's Estate , 168 Pa. 171 ( 1895 )

Opinion by

Mr. Justice Mitchell,

Although the testator’s direction that his daughter’s portion of bis estate should be held on a separate use trust, might seem on his literal wording of it, to depend on a contingency, yet his plain intent to the contrary appears from a view of his whole will together. He directs his real estate to be held “ as at present, undivided, and unapportioned ” during the life of his widow, and the interest of each child during that time is only in a share of the “ net residue ” of the income, after payment of taxes, necessary repairs, etc. This arrangement, “as the testator calls it, is to continue during the life of his widow, and at her decease his “ children shall do as they think best,” i. e. as to a continuance of the arrangement, but should they “ agree to a division of the estate ” then the separate portions of the daughters “ shall be separately secured to them and their use beyond the dictation of the husband of either of them.” The purpose to create a separate use is thus clear, and where that is so, no particular form of words is necessary. The fact that it is directed on the happening of the contingency of the widow’s death and the refusal of the children to continue the joint arrangement, is no more than a direction to put the trust into form when it may become necessary. So long as the estate was held together on the trust to collect and distribute the revenue a formal separate use was not necessary, the daughters got only their shares of net income without it, but when the estate was to be divided so that the daughters’ shares should come to them in severalty, freed from the first administrative trust, then the separate use would be required and was directed to be made. The contingency specified by the testator did not go to the creation of the separate use but to the time and occasion for putting it into formal execution.

The claim that the widow took a fee in one third of the realty cannot be sustained. The whole estate is left in an active trust to keep it together, collect rents, make repairs, pay incumbrances, etc., “ as though I myself acted in the premises,” and the widow was to get one third of the residue, that is, of the net income. Not only is this all that is given in terms to the widow, but the direction that after her death the joint administration of the whole may be continued by the children, or in case they determine to make partition, the daughters’ portions shall be put in separate use trust, shows that it is all the testator intended to give.

Decree affirmed.