Estate of Hibbs

Opinion,

Mr. Justice Sterrett:

There are two classes of cases in which the question of accumulations has been raised in this court since the passage of the act of 1853; (a) that in which the manifest purpose of the testator was to add such accumulations permanently to, and make them take the destination of the original trust-estate: Washington’s Est., 75 Pa. 102; McKee’s App., 96 Pa. 277; Carson’s App., 99 Pa. 325; Grim’s App., 109 Pa. 391; and (5), that in which the accumulations were intended to be temporary, and in the interest of judicious management: Eberly’s App., 110 Pa. 95. The first came plainly within the prohibition of the statute; the second did not. The purpose of the statute was to prevent permanent accumulations; not to interfere with judicious management.

The present case falls within the second class. The whole income is given in trust, and must be used for the benefit of Spencer B. Hibbs; but, as the “testator appears to have foreboded the thriftless ” character of the beneficiary, he substituted the discretion of a trustee as to the manner of its use. The power vested in this trustee, to withhold and invest part of the income, must be so construed, if possible, as to make it operative. It does not in terms nor by necessary implication require permanent accumulations. As already seen, the whole income arising during the trust must be used for Spencer’s benefit. In common prudence a contingent fund should be provided in anticipation of decrease of income, sickness and the like; and the natural inference is that the discretion was vested in tire trustee with this view. The accumulation was to be temporary, and in the interest of judicious management. The record does not show that the amount, already set apart, is unreasonable in the circumstances, and we cannot assume that the trustee has abused his discretion.

Decree reversed, with costs to be paid out of the trust fund ; and record remitted for further proceedings in accordance with the foregoing opinion.