Cooper's Estate

Opinion by

Mb. Chief Justice Paxson,

While this is a close case, we are of opinion' that the auditing judge was correct in his conclusions, and that the court below erred in overruling him. I understand it to be conceded that the trust created by the will of Emily W. Cooper was an active trust, and that its purpose was entirely legitimate. The cestui que trustent, with a single exception, are willing that the trusts shall be carried out as directed by the testatrix. The learned court below, however, held that it could not be done, because it was in contravention' of two legal principles. One is that the trust is engrafted upon a fee, and the other is that it creates a perpetuity. The important clause of said will is as follows:

“ I give, devise and bequeath all my property, real, personal or mixed, of whatsoever nature or description, to my children who may be living at the time of my death, share and share alike; if any one of my children shall have died before me leaving children, then the share of such a one shall go to such children; all the said property to be subject to the control of my executor and trustee as hereinafter set forth.”

By the next clause in her will the testatrix appoints her son (appellant) executor of her will and “ trustee of all my property, real, personal or mixed.” She then proceeds to confer upon her executor and trustee certain powers in regard to the management of the real estate, the particulars of which I need not specify further than to say that he is authorized to receive the rents, pay debts and encumbrances ; to'sell the real estate at either public or private sale, and generally to “ do everything whatsoever which may be requisite and necessary in reference to the management ” thereof; and when “ two-thirds of the persons interested in my estate shall so demand to sell my property real or personal and divide the proceeds among those interested under the provisions of this will.”

It will be noticed that the estate is impressed with the trust by the same paragraph which contains the devise to the children. We think the intention of the testatrix, as gathered from the four corners of the will, was accurately stated by the auditing judge in the following paragraph of his opinion :

“ While she bequeaths and devises all her estate unto her children living at her death, and the children of any who were dead leaving children, yet she did not intend to give them an absolute vested interest payable to them and to the possession of which they shall be immediately entitled upon her death. But this vesting in possession she postponed until two thirds of the persons interested in her estate shall demand a final distribution, in which event the executor and trustee shall convert all her estate into cash and divide among those interested under the will. Until this event occurs, however, she placed all her property under the control of her executor, whom she expressly appoints as trustee.”

It being clear from the terms of the will, that it was the intention of the testatrix to create a trust for a lawful purpose, and for the management of the estate, the court ought not to interfere, unless it involves a violation of an inflexible rule of law. The manner in which the trust is imposed is not material if the intention can be clearly gathered from the will. No particular form of words is necessary to create a trust. It was said by Lord Eldon in King v. Denison, 1 V. & B. 273, that the word “ trust ” not being made use of is a circumstance to be attended to, but nothing more, and if the whole frame of the will created a trust, for the particular purpose of satisfying which the estate is devised, the law is the same, though the word “ trust ” is not used. In Vaux v. Parke, 7 W. & S. 19, there was an absolute gift which was cut down to a spendthrift trust by a subsequent clause of the will, and this was held valid. In Briggs v. Davis, 81* Pa. 470, a trust was imposed after an absolute devise. We do not regard this trust as in any way an illegal restraint upon alienation, for the reason that there is a vested interest in the devisee which he can sell or dispose of at pleasure, and it is only the time of enjoyment of the profits of the same which is provided for.

We are unable to see anything in this trust which is in conflict with the law in regard to perpetuities. The mere fact that no time is fixed within which the power of sale must be exercised, does not of itself create a perpetuity. It is sufficient to say that a power to sell and distribute the proceeds, created by a will, must be exercised within a reasonable time. It is always within the power of the orphans’ court to control the exercise of a discretion in such cases upon the application of the parties in interest. A power of sale is good, although no time be limited for its exercise: Marshall’s Estate, 138 Pa. 260. Aside from this, it was competent for all the parties in interest at any time to defeat the power and to take the property discharged thereof. Under these circumstances, we cannot say that the trust created a perpetuity.

It is not necessary to discuss the case further in view of the well considered opinion of the auditing judge.

The decree is reversed at the costs of the appellee, the adjudication is affirmed, and distribution ordered in accordance therewith.