Sharpless's Estate

Opinion by

Mr. Justice McCollum,

We agree with the learned auditor that this case is not distinguishable in principle from Yerkes’s Appeal, 2 Chester Co. Reports, 410. In that case the testator bequeathed the income of his estate to his wife, during her life, and at her death the principal of it to his children who conveyed their interests in it to her. An application was made to the orphans’ court for an order on the executor to pay to her the corpus of the estate and it was resisted by him on the ground that the trust was an active one and the persons entitled to the remainder could not defeat the will of the testator by a conveyance of their interest. The order was made, and, on appeal to this court, affirmed. It is apparent from the brief opinion filed in the case that the affirmance rests on the conclusion that the chief object of the testator was to preserve the corpus of his estate for his children, and as by their conveyance the remainder was vested in the person entitled to the income, no valid reason appeared for the continuance of the trust.

In the case at bar the testator bequeathed a fund to be held in trust by his executors, “ they to invest the same at interest, and pay over said interest to his niece Caroline Hampton during her life and at her decease,” to pay over the principal to her daughter Bessie Hampton to whom he gave the same. The obvious purpose of the testator in the creation of the trust was to preserve the corpus of the fund for the person entitled under his will to receive it. Caroline Hampton is, and at the time of the execution of the will, was, a married woman, and the contention of the executors and trustees is that the trust was established for her protection—that it is a separate use trust which cannot be terminated during the life of her husband. But there is nothing in the will which indicates an intention to create such a trust, nor can we discover in the extrinsic facts found by the auditor, anything which aids or gives color to the appellant’s construction. Certainly the finding that the testator was a member of the Society of Friends and Caroline’s husband was the keeper of a licensed restaurant in West Chester and a “temperate, industrious, thrifty and worthy citizen,” is no justification of it.

The interest which Bessie Hampton acquired in the estate of John Sharpless by virtue of his will, is, by her conveyance, vested in her mother. Caroline Hampton being the owner of the fund and entitled under the will to receive the income from it during her life, no valid reason appears for continuing the trust to invest it and pay the interest thereon to her.

The specifications of error are overruled.

Decree affirmed and appeal dismissed at the cost of the appellants.