Reiff & Umstead's Appeal , 60 Pa. 361 ( 1869 )

The opinion of the court was delivered,

by

Sharswood, J.

It is beyond any question that the petitioners took under the will of their father, after the death of the widow, express estates for life. What is contended to be in the first part of the will an absolute bequest, “ all my estate of whatsoever kind the same may be, I give, devise, and bequeath unto my seven children in equal shares,” is qualified by the words which immediately succeed “in manner following, to wit:” and that is as to the shares of the sons “ to hold to them respectively, their heirs and assigns forever,” but as to the shares of the daughters, they “ shall be held by them respectively * * * * for and during the term of their natural lives respectively” with remainders to their children. There is another clause in the subsequent part of the will which is supposed to contradict this, and place all the children upon an equal footing. It is that in which he authorizes his executors before the death of his wife at her request, to divide so much of his personal estate consisting of bonds, mortgages, and other securities as she might designate among all his children, “ so that each of them shall have an equal share of the same, and upon such division, the share of each of my said children shall be held by them respectively, their heirs and assignsbut this clause is immediately followed by a proviso, which limits the shares of the daughters according as he had before directed: “ Provided, however, that the shares thus coming to my said daughters shall be held by them in trust for the same term and under the same powers, provisions and limitations as are before mentioned, of and concerning their respective shares of my estate.” Construing the whole will together there is no inconsistency in it. There is no absolute gift to the daughters in any part.

Nor do the words “ in trust” vary the construction. For this, Clevenstine’s Appeal, 3 Harris 495, is a direct authority. The testator did not intend to make his daughters trustees for themselves, and for their children after their death. Th'e words were introduced here as in the case cited under some vague idea that they were necessary. It was at one time the received opinion that a gift or bequest for the separate use of a married woman was not lawful without the interposition of trustees, but that opinion has been long since exploded: Hill on Trustees 420. Indeed, since the Act of April 11th 1848, “ to secure the right of married women” (Pamph. L. 536), all property which may be owned by a married woman at the time of her marriage or which shall accrue to her afterwards, “ shall be owned, used and enjoyed by such married woman as her own separate property.” The testator therefore in providing that the shares of his daughters “ shall be held by them respectively in trust to take and receive the income and interest thereof, and to appropriate the same respectively to their own use each and every year for their own sole and separate use whether covert or sole,” did nothing which the law would not have done without any such provision, except as to their power of disposition under the ruling of The Pennsylvania Company v. Foster, 11 Casey 134.

The existence of a trust in the tenant for life for the remaindermen was not considered in Clevenstine’s Appeal, to take the case out of the purview of the forty-ninth section of the Act of February 24th 1834 (Pamph. L. 83), which enacts that “whenever personal property is bequeathed to any person for life or for a term of years or for any other limited period or upon a condition or contingency, the executor of such will shall not be compelled to pay or deliver the property so bequeathed to the person so entitled, until security be given in the Orphans’ Court, having jurisdiction of his accounts in such sum and form as in the judgment of such court shall sufficiently secure the interest of the person entitled in remainder whenever the same shall accrue or vest in possession.”

Decree reversed at the cost of the appellees.