Marshall's Estate

Per Curiam,

These appeals involve the construction of the fourth paragraph of the will of James Marshall, deceased. Said paragraph is as follows:

“ I bequeath to my executors all the balance of iny estate, real, personal and mixed, to have and to hold the same in trust for the use and benefit of my children, viz., Harriet Watson, James, Julia, and Anna Frances, making them all equal at twenty-one years of age, share and share alike; and should any of them die without lawful issue, their interests shall be equalty distributed to the survivors, or the heirs of my deceased children, by investing it for their benefit, or paying to them the proceeds; as I wish them, thq executors, to be invested with full power to give or withhold, as they think best for the interest of any or all of my children; and, for the purpose of carrying out this my purpose, I hereby authorize my executors to purchase and sell real estate, at public or private sale, as they deem for the best interests of my children, and to hold it' in trust for them, or give it to them, as^hey regard their best interest.”

The appellant, George I. Whitney, is the assignee of the interest of James Marshall, Jr., in the estate of his father, James Marshall. The said James Marshall, Jr., was one of the executors and trustees named in the will, and was for some years the active executor. The result was a devastavit, by which the estate lost heavily and the interest of the said executor therein was wholly or for the greater part absorbed. Having become insolvent, be made an assignment for the benefit of creditors to the .appellant Whitney. The point which the latter makes is that, under the will of James Marshall, deceased, “ each of his children took a vested interest in fee in the lands of the decedent.” See third assignment of error in Whitney’s Appeal. The result of this contention, if sustained by the court, would be that a portion of the real estate would go to pay the creditors of the defaulting executor and trustee, notwithstanding his devastavit.

We will dispose of this question first. Its solution depends upon the fact whether, under the will, there was a conversion of the real estate. Upon this point we are not in doubt. It was held in Hunt’s Ap., 105-Pa. 128, and in other cases there cited, that a conversion of real estate will be implied when there has been a blending of the real and personal estate' so as to show that the testator intended to create a common fund out of both real and personal estate, and to bequeath the fund as money. That there is such a blending of the real and personal estate in the will of James Marshall, and that he intended the whole to be distributed as money, is so obvious that we may well be spared a further discussion of this branch of the case. We are of opinion there was a conversion.

Other questions arise upon the face of this clause of the will. That it creates an active trust is apparent. How long does this trust continue? This is the second, and the only remaining question of importance in the case. The appellants contend that the trust determined on the arrival of the youngest child of James Marshall at twenty-one years of age. The learned judge of the orphans’ court held otherwise, and in this we think he was right. While the clause of the will is by no means clear and is very inartificially drawn, we find nothing in it to limit the trust to rthe majority of the youngest child. The controlling thought in the will is to create a trust for all his children of the residuary estate during their respective lives, with the power on the part of the executors to end the trust as to one or more of them, and for this purpose they are authorized “ to hold it in trust for them, or give it to them, as they regard their best interest.” Nor does the direction that the children are all to be made “ equal at twenty-one years of age, share and share alike,” imply that the trust is to end at that time. This expression may well apply to the income, if the corpus remains in trust, without doing violence to any other portion of the will. As the children are all living, and the trustees have not exercised their discretionary powers and ended the trust, we are compelled to hold that it still continues. The same clause in this will was before this court in Marshall’s Est., 138 Pa. 260, and it was held that the power of sale was discretionary, and without limitation as to the times within which such sales should be made. It follows that, if the power of sale is still in existence, the power to “ give or withhold ” the corpus of the estate is also in existence.

What has been said covers the assignments of error in each case. It follows that the fund for distribution should be held by the trustees under the trusts in the will.

The decree is affirmed, and each appeal dismissed at the costs of the respective appellants. C.