Linton's Estate

Opinion by

Mr. Justice Fell,

The real estate in question was conveyed in 1843 to Charles Kuhn in trust, to collect the rents and pay them to Sarah Linton, wife of William Linton, during her life, and after her death to hold in trust to the use of her appointees by will, and in default of appointment by her in trust to the use of such persons as would have taken her estate under the intestate laws if she had survived her husband. Sarah Linton died in 1844, testate. By her will, after reciting the deed of trust and her power of appointment, she directed that the trustees should hold the property in trust during the life of her husband to pay him the rents or to permit him to occupy the same. “ And from and immediately after the decease of my said husband upon- trust to hold the said, messuages .... to and for the only proper use and be-hoof of such person or persons and for such estate or estates to whom and as the same would have gone under the intestate laws of Pennylvania, had I survived my said husband and then died intestate.” William Linton died in 1884. At the audit the rents collected since his death were claimed by his heirs and by the escheator. They were awarded to the latter. Exceptions to the adjudication were sustained by the orphans’ court on the ground that the commonwealth had no title.

The intention of the granter was to part with the whole estate, both legal and equitable. The legal title is now and has been since 1848 in the trustee, (1) under the deed of trust for Sarah Linton for life ; (2) under her will for her husband for life ; (3) under her will for such persons as would have taken under the intestate laws if she had survived her husband and then died intestate, seized thereof. The only person who can now take under (3) is the commonwealth. The will of Sarah Linton divested the whole estate by providing for a remainder in fee after her husband’s life estate. As there is no one to take under the will, and as trust estates escheat, under the act of April 16, 1869, the trustee now holds for the commonwealth, and as a dry trust it will be executed.

Her husband did not take the remainder because, first, his right was statutory and could arise only in case of intestacy on his wife’s part. He was not within the statute. Secondly, she having power to do so by her will expressly excluded him. Her direction was that the remainder after the termination of the life estate should be held in trust for the use of such persons as would have taken under the intestate laws if she had survived him. If any relative appeared, he would take under the will, but none appearing and the devise being only for life and then over in fee, not if, or in case she survived him, but as if she had survived him, the act of 1833 names the commonwealth in default of known heirs or kindred. In order to carry out her will we must deal with the estate, not on the facts as they turned out to be, but as she directed them to be assumed.

The decree sustaining the exception to the adjudication is reversed.

McCollum, C. J., and Bbown, J., dissent.