Knowles's Estate , 208 Pa. 219 ( 1904 )

Opinion by

Mr. Justice Fell,

The trust arose under a conveyance of real estate in 1831 to Gershom W. Lambert in trust to collect the rents and to pay one fourth thereof to each of his daughters named in the deed. In case of the death of a daughter leaving issue, the fourth was to be paid to the issue or during minority to be appropriated for maintenance and support. In the event of the death of a daughter without issue, the share of the one dying was to be paid to the surviving daughters or their issue. The trust was to terminate on the death of all the daughters and the arrival of the youngest child of all their children who might survive them at the age of twenty-one years, when a conveyance in fee was to be made to the issue of the daughters in the proportions they would have taken under the intestate laws in case the estate had descended from the trustee and their mothers. The deed further provided that the trustee might sell with the consent of the daughters; that he might alter the trusts and vary the proportions allotted to any of his daughters or their issue ; that he might at will exclude any or all of them or their issue from the enjoyment of any share of the income or of any interest in the estate; and that in the event of the death of all his daughters without issue at their decease, or if none of such issue should attain the age of twenty-one years, the trust should become void and the trustee should hold the property free of all trusts.

One daughter is still living ; one died without issue; one died leaving three daughters all of whom are living; one died in 1870 leaving a daughter, Virginia Pollard, who died in 1900 without issue and by her will devised her interest in the trust estate to Elizabeth S. Hunter, a stranger in blood. The administrator cum testamento annexo of the estate of Virginia Pollard petitioned the court for a citation on the substituted trustee to require it to appear and show cause why it should not pay the share of Virginia Pollard in the income to him. After hearing the petition was dismissed.

The claim of the appellant is that the interest in one third of the income of the estate was vested in Virginia Pollard and was subject to her disposition by will, and would pass to her administrator c. t. a., until the debts were paid. This claim rests upon the proposition that the deed does not limit the enjoyment of the income by the issue of a daughter to a life estate and that the issue take an equitable estate in the income as large as the legal estate vested in the trustee, and that an equitable fee simple having vested, there was no condition subsequent that would divest it.

The purpose was to create a trust for the daughters of the trustee and their issue for as long a period as possible under the rule against perpetuities. There was a failure specifically to provide in the deed for the contingency of the death of a daughter leaving a child who should attain the age of twenty-one and die without issue during the continuance of the trust. The intention, however, is manifest. The direction was to pay income to all the daughters, or to the remaining daughters in the event of the death of one or more without issue, or to the remaining daughters and the issue of a deceased daughter, until the death of all the daughters and the arrival at the age of twenty-one of the youngest child of all the daughters who may have survived them. Those who should then take would be the survivors not only of their mothers but of all the other first takers. The gift over is to those who should be living at .the time of the distribution. Any other construction makes inoperative the provision that the trustee may alter the terms of the trust and increase or diminish or take away altogether the interest of any daughter or her issue in the estate; and give the share allotted to another daughter or her issue ; and defeats the intention, manifested by the whole deed, to preserve the estate unchanged as long as the law would permit for the benefit of the descendants of the trustee, and that the division when made should be to those of his blood in the proportions fixed by the intestate laws, as if the estate had descended from him and his daughters.

The decree is affirmed at the cost of the appellant.