Behringer's Estate , 265 Pa. 111 ( 1919 )

Opinion by

Mr. Justice Simpson,

The appeal in this case will have to be quashed. Each assignment of error violates the rules of this court, the first because it refers to the sustaining of four separate exceptions and does not quote any of them, nor are any of them quoted in the other assignments, and the others because' they allege errors of the court below in not doing certain things, without setting forth how or in what way it was asked to do them. Moreover, appellant has no interest in the property, the subject of this controversy. She is but a dry trustee thereof, required to convey it upon demand, — in effect merely a stakeholder, and therefore not entitled to appeal: Crawford v. Shriver, 139 Pa. 239; Real Estate Trust Company v. Pennsylvania Sugar Refining Company, 239 Pa. 456. We less regretfully reach the conclusion stated, inasmuch as in no event could the relief sought be granted.

Appellant presented to the court below a petition under Sections 1 and 2 of the Revised Price Act of June 7, 1917, P. L. 388, averring that on January 30, 1899, she and her husband, now deceased, executed a declaration of trust as follows: “Know all Men by these Presents, that we, the undersigned, John P. Mehl and Mary' B. Mehl, his wife, do hereby certify that the land conveyed by George J. Behringer and Elizabeth Behringer, his wife, to us by their deed dated January 30,1899, we hold in trust for said Elizabeth Behringer, wife of said George J. Behringer, and we hereby further covenant and agree for and in consideration of the sum of One Dollar to us in hand paid by the said Elizabeth Behringer, the receipt whereof we do hereby acknowledge, that we shall and will convey the real estate described in said deed unto any person or persons named and designated by the said Elizabeth Behringer, her heirs and assigns, upon request or requests made to us in writing”; that said Elizabeth Behringer died without making any disposition of said property, “by reason whereof it descended to and vested in” her five children, “all of whom are of full age and sui juris”; that three of said children desire a sale of the property and join in the petition, but the other two “have refused to act, and do unreasonably withhold their consent to a sale being made of said premises.”

The court below thereupon issued a citation to the other two children, and, they not appearing at the return day thereof, directed a public sale of the property, a salé was had, the nonconsenting children filed exceptions to its confirmation, alleging the court had no jurisdiction to order the sale, and the purchaser filed a petition also alleging a lack of jurisdiction, and praying relief from his bid. The court below, following the reasoning in Garrison’s Estate, 65 Pittsburgh Leg. Journal 778, concluded that the court of common pleas alone had jurisdiction, and hence sustained the exceptions and set the sale aside. Appellant, being of opinion that the jurisdiction of the orphans’ court was properly invoked, because, as she alleges, the title to the property was acquired “partly by deed and partly by descent,” prosecuted this appeal. With that difference of opinion we are not concerned, for in onr judgment neither court had jurisdiction to grant the relief sought.

The petition was evidently filed under section 2, clause (d) of the act, which provides that “The several courts aforesaid shall exercise the jurisdiction conferred...... where there is a power of sale; and......any one or more persons required to consent or join in its exercise ......refuse to act [or] unreasonably withhold consent.” Appellant, however, has no “power of sale,” but only an obligation to “convey the real estate described ......upon request or requests made......in writing.” She has no discretion in the matter, her duty is to obey the wish or whim of the real owners, whether she believes it to be wise or otherwise, provided only it is expressed “in writing.” Clearly, therefore, this is not a matter within the contemplation of that provision of the act.

We might dismiss the matter at this point, for the basis of the petition is the foregoing provision only; but we have searched the act to see if we could find elsewhere therein authority to grant relief under the facts stated. We have found none. It is true section 2, clause (a), subclause (Five) authorizes the court to act where property is “subject to a trust of any description whatever”; and section 2, clause (f) “where a trust has been created, and no power conferred on the trustee to do any of the acts which the court is empowered to authorize or confirm under the provisions of section one.” Those clauses, however, manifestly relate only to a trust which is valid and subsisting at the time relief is sought, and not to one which is purely passive, or having once been active has ceased and determined. In the instant matter the trust always had been passive, and no reason exists why it should longer continue.

We held in Rodrigues’s App., 1 Monaghan 59, 64, and again in Wood’s Est., 261 Pa. 480, that where a trustee has no duties to perform, there is no limitation over of either income or principal, there are no other estates or interests to preserve, and the trust is not a spendthrift trust or for protection during coverture, the equitable title to the property vests absolutely in the persons beneficially interested; and in Culbertson’s App., 76 Pa. 145; Harrar’s Est., 244 Pa. 542, and Stafford’s Est., 258 Pa. 595, that even where a valid trust is created, it continues only so long as the thing secured by it demands, and thereafter will be declared at an end at the request of any one in interest. Here the declaration of trust expresses no reason for the conveyance to appellant, and it is more than doubtful whether anything could be added thereto by parol, even if the petition had averred, which it did not, that the trust had any other purpose than to conserve the convenience of the parties. The only other imaginable purpose or purposes would be either to create a separate use trust for Mrs. Behringer, or to enable her to convey a good title without the joinder of her husband; and, of course, if they ever existed, they both ended when she died.

The parties in interest in this property have an adequate remedy wholly aside from the Revised Price Act. Any of them may institute an action of partition, at law or in equity, whether the estate is legal or equitable: (Hayes’s App., 123 Pa. 110, 132; Hanna v. Clark, 189 Pa. 321); and appellant could be required to transfer the legal title to the allottee or purchaser, in the same proceeding if it is in equity, and in another proceeding if it is not.

The appeal is quashed.