Williams's Appeals

Chief Justice Agnew

delivered the opinion of the court, May 7th 1877.

It is to be regretted that these two trusts have been blended in the proceeding below. To this we must attribute the remarkable confusion, by the learned auditor and the court, of two trusts so different from each other in marked characteristics. It seems the report awaited the decision in Earp’s Appeal, 25 P. F. Smith 119, but the learned auditor thought it afforded no guide; quoting that sentence in the opinion in which it is said the interpretation of the language of wills must vary with the intention of the testator, as “ precluding the attempt to discern any such guide.” The criticism has the merit of novelty, as it has always been supposed that the intention of a testator is the polar star to guide to the meaning of his language, and there is no procrustean rule on which words can be stretched to make them always fit certain legal results, whether so intended or not. Such a rule might suit city scriveners where wills follow given formulas, but never could be tolerated in those parts of the state where ignorant men draw wills, a class which far outnumbers the former. No greater outrage upon the rights of dying men could be committed than to defeat their just intentions by rules which make words and not the sense the guide of interpretation.

It is to be regretted that the learned court and auditor found no guide in Earp’s Appeal, as its principle is in a greater degree applicable to the trust under Thomas Williams’s will. That principle had been announced in Barnett’s Appeal, 10 Wright 392, and has been repeatedly re-announced: Dodson v. Ball, 10 P. F. Smith 496-7; Wells v. McCall, 14 Id. 212; Yarnall’s Appeal, 20 Id. 339; Ogden’s Appeal, Id. 507; Ashhurst’s Appeal, 27 Id. 464. The principle is that when an active trust is created to give effect to a well-defined lawful purpose of a testator in relation to his family the trust must be sustained whether the cestui que trust be sui juris or not.

In Earp’s Appeal the corpus of the entire estate was vested in the trustees with active duties. To the three children, Hannah, Anna and George, the income only for life was given, without reference to coverture, as the specific purpose of the testator to be guarded against. A power of appointment by will was conferred, but this, it has been decided repeatedly, does not enlarge the precedent life-estate: Dodson v. Ball, supra, and authorities there cited; Yarnell’s Appeal, supra; Ashhurst’s Appeal, supra. Upon a failure to appoint, the entire estate was then to be held in trust for those who would take under the intestate law as the heirs of the three cestuis que trust. Thus the trust was active; the entire corpus was to be kept in trust to execute the ultimate purpose of the testator; the three children were entitled to an equitable estate in the income only for life, and not for coverture. The remainder in the right of the three children was a legal estate, the active duties of the trustees ceasing at the death of the life-tenants and the trust being then executed: Bacon’s Appeal, 7 P. F. Smith 512; Rife v. Geyer, 9 Id. 393.

The testator had a lawful purpose to be performed, to wit: to protect his estate from all clanger of loss during the lives' of his three children, not from husbands merely, for George was in the same category with Hannah and Anna, an cl then to carry the. estate unbroken over to the children of the cestui que trust, for in the course of nature he had reason to believe they would be the heirs. The rule in Shelley’s case, therefore, had no place in the case, for the life-estate was equitable and the remainder legal. Earp’s Appeal was followed by Ashhurst’s Appeal, 27 P. F. Smith 464, in which Justice Sharswood very clearly develops the character of the former, and winds up his statement thus: “It was not a case in which the entire equitable fee or absolute estate was in the beneficiary, when the continuance of the trust is no longer necessary, and ought, therefore, to end at the volition of the cestui que trust."

Now, if we examine the will of Thomas Williams, we. shall find that it is a clearer case for the application of a principle which preserves an active trust to fulfil the purpose of the testator than either Earp’s or Ashhurst’s trusts. He gave the entire corpus of the estate to trustees, with active duties to lease the realty and put out the personalty upon real security, and to collect the rents and income and pay the same to Hannah Williams for life, and so that it should not be liable to the control or debts of her husband. Had the trust stopped here, it might have been argued with force that it was intended to protect against coverture only. But, after providing for a power of appointment by will, which we have seen does not enlarge the life-estate, the will proceeds in these words: “and for want or in default of such nomination, direction or appointment, then in trust after the decease of her, my said daughter Hannah, to and for the only proper use and behoof of all and every the child or children which she may leave, and the lawful issue of any of them, who may then be deceased, haying left such issue, their several and respective heirs, executors, administrators and assigns, in equal shares as tenants in common, such issue of any deceased child or children of her, my said daughter, taking and only receiving such part' or share thereof as his, her or their deceased parent or parents would have had and taken had he, she or they been then living.” This is followed by a provision, in case of Hannah’s death without leaving any child or children or the issue of deceased child or children, that the estate shall go over to the right heir or heirs of Hannah. Thus between the life-estate of Hannah and the contingent fee given to her right heirs (that is, the collaterals), is .interposed an estate in fee given to her children, who take as purchasers from the testator, and not by inheritance from her. The devise and bequest to the children, their heirs, legal representatives and assigns are so clear and well defined their purpose and character admit of no dispute. During Hannah’s lifetime the possibility of children continues, so that her life-estate and the ultimate devise over to her collateral heirs cannot coalesce. That child or children in such a case are words of purchase and not of limitation admits of no denial: Walker v. Milligan, 9 Wright 178; Taylor v. Taylor, 13 P. F. Smith 483-4; Haldeman v. Haldeman, 4 Wright 35-6; Yarnall’s Appeal, 20 P. F. Smith 341.

The difference between Earp’s will and the wills in Yarnall’s and Ogden’s Appeals, 20 P. F. Smith 501, was so clearly pointed out in the opinion in Earp’s Appeal it was supposed no one would fail to perceive it. In the former the bequest was to children of income only for life, irrespective of coverture, and a clear purpose appeared to protect the corpus or entire estate for the ultimate devises and bequests of the testator. In the latter the intent of the testators, as ascertained, was to vest the entire estate in fee, in one case, and vested in the other in the beneficiaries, and the trust was intended only as a protection during coverture. The trusts for coverture having fallen and no other useful and lawful purpose appearing, the trusts became executed, and the life-estate legal, as well as the remainder, and they coalesced under the rule in Shelley’s case. In the trust under the will of Thomas Williams the devise and bequest to Hannah’s children as purchasers cannot be squeezed out between the life-estate and the contingent devise over to the collateral heirs of Hannah

The trust under the will of Mary Williams stands on a different footing. In it the only purpose appearing is a protection against the husband of Hannah W. Sterling during coverture. It is, therefore, governed by the principles stated in Yarnall’s Appeal, supra. There the trust never took effect — here it failed by the death of the husband. The result is the same, however, the trust becoming executed. See the authorities collected in Megargee v. Naglee, 14 P. F. Smith 218, and in Yarnall’s Appeal, supra, 339. In each case the trust is of the income for life, but in neither is any purpose of protection, except for coverture, discernible, while the estate, by the terms of the trust, vests on the failure to appoint in the same persons who constitute the heirs under the intestate law. Hence the trust for coverture having fallen, Hannah W. Sterling has a legal life-estate with a remainder to her heirs, and by the operation of the rule in Shelley’s case the two estates meet together and constitute a fee in her.

This rule is not a technicality, as is shown in Yarnall’s Appeal, but is founded in the nature of things, and the very purpose of the testator. It is not used to determine -the meaning of a will, but its operation, when the meaning has been ascertained by the ordinary rules of interpretation. See citations from Fearne on Remainders, and Hileman v. Bonslaugh, 1 Harris 344. Hence when it is ascertained by interpretation■ that a testator has given a “life-estate to one, and a remainder of the same quality to the heirs of the same person, the estates necessarily close together, and form one estate of inheritance in the so-called life-tenant. Eor as it. is said in Yarnall’s Appeal, 342-3 : “ The remainder being limited to his heirs, he (the life-tenant) necessarily becomes the stirps or root of a line of unknown persons, not individuated by the will, and yet dependent on him as their source. They spring into recognition only at his death, for nemo est hceres viventis. In other words, they come at the bidding of the law, and not of the testator, who merely adopts them as the law turns them up in the furrow of descent. He who, at the date of the will, might have appeared to be the heir, by marriage, birth or death, may not be the heir when the will takes effect. In the very logic of the succession, the life estate, therefore, incorporates with the inheritance, because of the failure of the testator to designate any other than the legal line of descent. In short, he calls the devisee a tenant for life, yet vests the fee in him. This being the intent of the testator, it is immaterial in the will whether he describes the line of descent by a word of art, or a periphrasis, meaning the same thing.”

The difficulty met in Yarnall’s Appeal and Ogden’s Appeal was in determining the true intent of the testators, hot in the application of the proper principles. These were clear when the intent was discovered. Two important principles were re-affirmed in those cases. They had been established before. They were:—

1. That an active trust having no longer a proper object to serve will cease, when its only purpose has come to an end, and this is always so when an estate of inheritance or an absolute estate is put in trust for coverture merely. See authorities collected in MeGargee v. Naglee, 14 P. F. Smith 216.

2. That when a testator uses words intended to designate an entire line of descent, either lineal, or lineal and collateral, as an ultimate limitation of the trust, the periphrasis will be considered as equivalent to the words, “heirs of the body,” or “heirs,” as the case may be, and afford a ground for the coalescing of the life estate and the remainder, if of the same quality, thus creating a fee tail or a fee in analogy to the rule in Shelley’s case.

As these appeals stand before us, so much of the decree of the Orphans’ Court as relates to the trust in the will of Thomas Williams, is reversed, and the record is ordered to be remitted with a procedendo in accordance with this opinion. So much of the decree as relates to the trust under the will of Mary Williams, is affirmed with costs to be paid out of the estate, and the appeal as to this trust is dismissed.