Renziehausen v. Keyser , 48 Pa. 351 ( 1865 )

The opinion of the court was delivered, by

Read, J.

— The controversy in this case is narrowed down to a construction of the marriage articles of the 15th January 1833, between John D. Mahon of the first part, Agnes M. Rose (now Mahon) of the second part, and Benjamin Darlington and Abisha Way of the third part. John D. Mahon is dead, leaving his wife Agnes surviving him. By this deed, Mrs. Rose conveyed all her estate, real, personal, and mixed, to the parties of the third part, in trust, that they will take the same into their possession, care, and management, and apply the personal estate to the discharge of all the debts of the party of the second part, then due and owing; and also to the payment of all such debts as she may contract for household furniture and other necessaries required by her for her comfortable establishment after her marriage, and then from time to time to pay over to her, for the support of herself and husband, such sums as. may be necessary for their support and maintenance; and the residue of the personal estate to be so invested by them, according to their best discretion, as to be secure and productive, for the accomplishment of the purposes specified in said articles; and further to let upon lease for years or upon ground-rent for ever, all or any part of the real estate of the second party aforesaid, or to make improvements or buildings on the same with the written assent and approbation of the terms by the first and second party, and with their like assent and approbation to borrow money for the purpose of making such improvements, and to mortgage any portion of said real estate for the security of repayment of such loan or loans, and from time to time to pay over to the first and second parties, out of the rents or other income from the estate thus vested in the said third party, as may be deemed necessary by the first and second party for their own comforts and support, or for the maintenance, support, and education of her son, William J. Rose, as also for the support, maintenance, and education of such children as may be born to the first and second parties during their marriage, and then after other trusts, which have become immaterial, proceeds: “ but if the second party should survive the first, then the third party shall forthwith deliver over, transfer, and reconvey to the second party all her estate, and the income remaining in their hands, and cause the same to be reinvested in her in perpetuity, as completely and fully as they may have and hold the same.” The trustees are given power to employ and pay agents, and to retain a suitable compensation for their trouble and services, and the third party declare and agree with the first and second parties, to accept the estate and trusts thereby created, “ and when the said trusts come to am end according to the limitation therein expressed, they will convey, release, and transfer the estate hereby vested in them, in the manner and to the persons and for the uses and purposes hereby designated.”

From the foregoing statement it is clear that the trusts have come to an end, and that both the legal and equitable estate in the real estate, whether in the shape of land or ground-rents, is entirely revested in Mrs. Mahon, who was therefore entitled to receive the arrears of the ground-rent, and to take all legal measures to recover them: Barnett’s Appeal, 10 Wright 392. As the lessee could not have any defence to this demand, it seems certain that the trustee who was bound to convey the ground-rent by the covenant' in the marriage articles to Mrs. Mahon, could not defend underlain; for what he contracted to do, was considered by our law as actually done.

The court were therefore right in overruling the plaintiff’s objection to evidence, and also in overruling the offer of evidence by the plaintiffs, for it is clear they could in no way have affected the result, and were irrelevant to the issue trying.

Judgment affirmed.