Chamberlain v. Maynes , 180 Pa. 39 ( 1897 )

Opinion by

Mr. Justice Mitchell,

By the deed of trust of Kelly to Maynes, the former’s daughter Mary took a vested remainder in fee in an undivided half of the property, after the death of her father and mother. Kelly’s deed did not create a separate use trust, but an ordinary estate in remainder, after two life estates, which was alienable by the remainderman in the ordinary way. The trust was active during the existence of the two life estates, in order to preserve the remainders, but that was the extent of its real purpose. At the death of the surviving life tenant, Mrs. Kelly, the title in remainder became a title to present possession in Mary or her alienee. That is the plain intent of the donor as expressed in the deed. The words are that the trustee shall hold the property, “ so that the said Mary A. K. Reilly shall be entitled to receive one half of the rents, issues and profits ” and the minor children of Susan Maynes the other half. It does not admit of doubt that a court of equity would have decreed a conveyance of the legal title to the cestui que trust, and where that is the case the trust will be considered as executed without a formal conveyance by the trustee : Rife v. Geyer, 59 Pa. 393. As already said, Mary Reilly’s estate in remainder being vested was alienable by her in the ordinary form, and such alienation was provided for by the deed which gave the trustee power to convey, but only when she should “ be desirous of disposing of her interest in said premises.” The trustee then had no discretion in the matter. He could not continue the trust against the will of the cestui que trust, and the form in which her intent to terminate it was asserted was not material. Mary Reilly or her grantee had therefore a title which was available in ejectment without a previous deed from the trustee: McFadden v. Drake, 79 Pa. 473.

It is true the deed gives the trustee a power of partition or of sale in case partition could not be made without spoiling the whole, but as already said this was only to be exercised when Mary Reilly should be desirous of selling, or when the youngest child of Susan Maynes should reach the age of twenty years, and partition or sale and distribution of proceeds was desired. The power in the trustee did not depend on his judgment, and was not an essential part of the trust which would keep it alive against the will of the cestui que trust, but was merely ancillary, and for convenience of administration. When Mary Reilly or her grantee chose to terminate the trust and treat the title as vested in law, the mere incidental authority of the trustee to make partition when it should be desired by the cestui que trust cannot be allowed to stand in the way.

Judgment affirmed.