Shoup's Estate , 31 Pa. Super. 162 ( 1906 )

Opinion by

Rice, P. J.,

It was said in Mehaffey’s Estate, 139 Pa. 276, that it is well settled by an unbroken line of cases, commencing with Fisher v. Taylor, 2 Rawle, 33, that, “ by using apt words ” a parent may create a special trust for the benefit of an unfortunate or a spendthrift child, without exposing his bounty to liability for any debts, contracts, or engagements of the beneficiary. No “ apt words ” for the creation of such special trust appear in the will; but it has been declared that a specific provision -that the income shall not be subject to the debts or liabilities of the beneficiary is not absolutely essential to the accomplishment of this object, but that the trust will be construed to be a spendthrift trust, if the terms of the instrument creating it show that the donor’s intention would be frustrated by the subjection of the income to the claims of creditors: Winthrop Co. v. Clinton, 196 Pa. 472. But while under the law of this commonwealth spendthrift trusts are not regarded with disfavor, yet they are not looked upon with such special favor as warrants the courts in construing a trust to pay the income of a fund to the testator’s son for life, without more, to be a spendthrift trust, or, in case of such a gift, departing from the general rule that when the language of a will is clear and unambiguous a doubt 'suggested by extrinsic evidence cannot be permitted to affect the construction of the instrument. But it is argued that, the mere creation of the trust for a son, while reposing confidence in others “ contrary to the usual order of things,” is enough in itself -to raise a doubt as to the intention of the testator, thus taking such a case out of the general rule last stated. This argument, as applied to this case, is based largely on the distinction which the testator made between his only son and his married daughter. But assuming for a moment, as the learned counsel contends, that this indicates that the testator had less confidence in the former than in the latter, it seems to us a non sequitur to say that it also gives rise to doubt whether the language of the gift of $10,000 in trust to pay the income to the son for life fully expresses the testator’s intention as to the right of the son to subject the same to liability for his debts and engagements. The language of the gift to the son being clear and unambiguous is not rendered doubtful in meaning by the mere fact that the gift to the daughter was not restricted to the income. Why the testator made this difference is matter of speculation; but inability to discover from a perusal of the will the reasons which influenced him to make the distinction is one thing, while to doubt whether the will fully expresses his intention is another and quite different thing. The former, standing alone, is no ground for resorting to extrinsic evidence. Presumably, withholding the principal from the son, and giving him the income only, constituted the full measure of restriction upon the son’s possession and enjoyment of that part of the estate which the testator deemed wise under the circumstances. If parol evidence was admissible in this case to sustain a construction whereby the trust as to the fund in question would be converted into a spendthrift trust, it is difficult to see why such evidence should not be admitted in -every case, no matter how clear and unambiguous the terms of the will, where a testator has given a share of his estate to one child absolutely, and has restricted his gift to another child to the income of another share which he has put in trust. This would be in plain contravention of the general rule that extrinsic evidence will not be admitted to create a doubt, and thus affect the construction of a will which on its face is clear and free from doubt and needs no construction. We all concur in the conclusion reached by the court below, and in the reasons assigned therefor in the opinion filed by its learned president. His discussion of the questions involved, and of the distinctions between Stambaugh’s Estate, 135 Pa. 585 (which in Winthrop Co. v. Clinton, 196 Pa. 472, was conceded to be an extreme case) and the case at bar, renders further elaboration by us unnecessary.

The decree is affirmed, the appellant to pay the costs.