Huber's Appeal , 80 Pa. 348 ( 1876 )

Mr. Justice Woodward

delivered the opinion of the court,

Frederick Gaul, Sr., died in the year 1831, leaving seven children. Before that time, and after the 1st of August 1825, the date of the execution of his will, his son Joseph had died. Having bequeathed his furniture and plate to his wife, the testator committed his residuary real and personal estate to the care and management of his executors. They were authorized to receive the annual income, and out of it were directed to pay $2000 a year to his wife, and to pay the residue semi-annually in equal parts to his eight, children. The provision in favor of his son Jacob was in these words: “ Another eighth part I direct to be paid to my son Jacob, or, at the option of my said executors, I authorize them to appropriate and apply the same for the support and maintenance of my said son Jacob, as they may see fit and proper, and so that the same, or any part thereof, shall not be liable to his disposal, orders, debts, control or engagements ; and in case of his decease, then to appropriate and apply the same for the support, maintenance and education of his child or children.” Upon the death of the widow, a distribution in equal eight parts was directed. One of these parts was given to Jacob “for and during all the term of his natural life, and after his decease, then. to all his children then living, and the issue of such of them as may be then dead, their heirs and assigns for ever, in equal parts ; such issue taking, and among themselves equally dividing, such part and share only as their deceased parents would have taken if living.” In the concluding paragraph of the will the testator declared: “ It is my mind and will that the part and share of my estate hereinbefore devised for the benefit of my said son Jacob, shall be and remain in the care and management of my said executors as his trustees, the interest and income of which, for and during the term of his natural life, I direct to be paid to him, or to be applied by them, at their option, for- his support and maintenance, so that the same shall not be liable to his disposal or subject to the payment of his debts.” Letters testamentary were granted to Frederick Gaul, Jr., and William Gaul, two of the executors appointed by the will.

After the death of Jacob Gaul, on the 9th of March 1811, letters of administration on his estate were issued to James S. Huber, the appellant, by whom the present proceeding was instituted to enforce a settlement of the accounts of the executors as trustees of the estate devised for the benefit of Jacob by his father. Both the trustees were dead, and their executors were made parties to the proceeding. After hearing, the petition was dismissed by the Orphans’ Court.

In this appeal the questions presented and argued have relation to the right of the appellant to an account, first, of the principal of Jacob’s share; secondly, of the accumulated income received during Jacob’s lifetime, and not paid to him, nor appropriated for his support; and thirdly, of the interest of Jacob in the share of his brother-Joseph, which had lapsed; and in property acquired by Frederick Gaul, Sr., after the date of his will, as to which he died intestate. Upon the first question, it is claimed by the appellant’s counsel, that the terms of the devise require the application of the rule in Shelley’s case, and that a gift for life having been made to Jacob, the provision that the share should go, “ after his decease, to all his children then living, and the issue of such of them as may be then dead, their heirs and assigns for ever,” defined an entire line of succession, limited an inheritance to the children as the heirs of Jacob, and created in him, therefore, an estate in fee, or at least in tail. Haldeman v. Haldeman, 4 Wright 29, and Yarnall’s Appeal, 20 P. F. Smith 335, were especially pressed as authorities for this position. In the first of these cases, a testator by will directed his executors to account for and pay over half-yearly to his three daughters, “ and to each of them during their natural lives, the income and profit arising out of each of their shares of the residue, and after the death of either, then to descend and go to the child, and if children, share and share alike. Should, however, either of my daughters die, and leave no lawful issue, then such share or portion is to fall back again to the residue, and form a part of the same.” It was held that each daughter took an estate tail in the residue of the testator’s estate, which, under the Act of the 27th of May 1855, became an estate in fee simple. In Yarnall’s Appeal, the testatrix gave the residue of the estate in trust for the use of all her children living at her death, and the issue of such as might be then dead, in equal parts. The trustee was to hold the shares of the daughters, and to pay the income during their lives, “ free from the debts of any husband they may have or take; and after their death, to pay the daughters’ shares according to their will.' In default of wills, the daughters’ shares to be paid to such person or persons as would be entitled to the same in case they had survived their respective husbands, and departed this life seised thereof in fee.” It was decided that the daughters took absolute estates in fee simple. On the other hand, it is insisted that nothing in those eases is essentially in conflict with Guthrie’s Appeal, 1 Wright 9 ; which decided that although the rules of construction permit the words “heirs of the body,” or “issue,” to be used in the limited sense of “ children,” and the word “ children,” which primarily indicates not heritable succession, but individual acquisition, to be used in the more comprehensive sense of the words “heirs of the body,” in cases in which a clear explanation will justify a departure from their ordinary meaning, yet there- must be an express warrant for this change, under the hand of the author of the gift, and conjecture, doubt or even equilibrium of apparent intention, will not suffice. The testator there devised a tract of land to his daughter for life, and provided for its disposition at her decease, as follows: “ The said lot or tract of land I hereby bequeath to such of her children, or their heirs, as may survive her, as tenants-in-common. The child or children of any deceased child of hers shall hold the same interest and right that the deceased parent would have held if living.” The daughter’s estate was held to be for life, and not a tenancy in tail.

It is no part of the purpose now in view to examine the long line of authorities bearing upon this perplexed and intricate branch of the law of Pennsylvania. The currents of decision, cross, counter and direct, have been traced in a case so recent as Dodson v. Ball, 10 P. F. Smith 492, from Lancaster v. Dolan, 1 Rawle 231, down to Rife v. Geyer, 9 P. F. Smith 393. One element in the long conflict is for the present at rest. Earp’s Appeal, 25 P. F. Smith 119; Ashhurst’s Appeal, 27 Id. 464, and Ash’s Appeal, 2 Weekly Notes 360, have settled principles beyond controversy to prove that this will created an active and operative trust. “ The decisions in all the cases,” it was said by the present Chief Justice in Dodson v. Ball, “ show the undoubted tendency of the judicial mind in this state to follow the true intention of the donor, and whenever he means to limit an estate to the heirs of the life tenant, no matter how his intent is expressed, an estate of inheritance will vest in the tenant for life; but when he intends his bounty to vest in certain persons, though they may be the same as the heirs at law, the life estate will not be enlarged.” And in Yarnall’s Appeal, in which the opinion was delivered by the same judge, it was said that where the testator intends the estate to go to the whole body of persons constituting in law the entire lineal descent, he means “ issue,” or “ heirs of the bodyand where he intends it to go to the whole line of descent, lineal and collateral, he means “heirs;” that technical phrases in wills, as well as forms of expression decided in other cases, are not permitted to overthrow the intent of the testator, when that intent is clearly ascertained to be different in the will under examination by the court; that the rule in Shelley’s case is not in reality an exception to the rule that the intention of the testator must guide in interpreting a will, but only sacrifices a particular to a general intent; and that it is only when a will has been interpreted by the ordinary principles of construction that the rule is to be applied, and is not itself the medium for discovering the intention of the testator. In ascertaining that intention, however, one of the ordinary and most familiar principles of construction is, that the word “ children ” is primarily a word of purchase. Do the other terms of the will of Frederick Gaul, Sr., prove that he used it as a word of limitation ? It is to be observed that he employed no other word in describing his son Jacob’s immediate descendants. The devise was to “ all his children then living, and the issue of such of them as may be then dead.” If Jacob had had children, none of whom had died, nothing in the testator’s mode of referring to them would have’indicated that he intended to do more than designate the individuals to whom he designed, after his son’s death, to transmit the estate. The word “ issue ” was employed in a superadded clause of distribution. It is not like the case of Haldeman v. Haldeman, where the provision in favor of the children of the testator’s daughters was followed by a disposition of the estate if the daughters “should die and leave no lawful issue.” Nor is it like Yarnall’s Appeal, where the tenants for life were authorized to devise their shares, and “ in default of wills,” the shares were to be paid to “such person or persons as would be entitled to the same if they had departed this life seised thereof in fee.” Even if a life estate could be said to have been vested in Jacob, the terms of the will were not adequate to enlarge it to a fee simple or fee tail.

The decision of every case involving the construction of testamentary words must depend in some measure on its special facts. In the present case, Jacob Gaul was not clothed with dominion over the interest devised to him, even during his own life. While one-eighth of the testator’s residuary estate was given to him in the clause directing distribution upon the death of the widow, the concluding paragraph of the will declared that his share should remain in the hands of the executors as his trustees; that it should be at their option whether the income derived from it should be paid to him, or be applied by them to his support; and that “ the same” (the income) should “ not be liable to his disposal or subject to the payment of his debts.” The legal title was vested in the trustees, as the. effect of these provisions, and his control even over the income was withheld. This was not such a gift of “ an estate of freehold” to Jacob, as, under the rule in Shelley’s case, or under any principle in analogy to that rule, would support a limitation to his heirs. The actual gift of the estate, as such, was to the trustees, and not to Jacob Gaul. In Physick’s Estate, 14 Wright 128, relied on by the appellant’s counsel, the devise was to Emlen Physick, subject to the same trusts and limitations as had been appointed for the testator’s nieces, each of whom was to receive the income of one-third of the testator’s estate from the trustees in whom the legal, title was vested, without being subject to the contracts, debts, control or interference of their husbands. This provision could not have been held to be imported into the devise in favor of Emlen Physick, for the effect would have been to annul the gift. The question, however, was not raised. All that was decided in Keyser’s Appeal, 7 P. F. Smith 236, was, that a devise in fee with a condition that it should not be liable for the debts of the devisee vested the estate free of the condition, which was held to be as repugnant to the estate devised as a provision in restraint of alienation. It is not necessary to express an opinion as to the effect upon the estate of a devisee for life, of a simple provision that it should not be subject to his debts. It might be absolute, nevertheless. But here there is more than that. The income was withdrawn from the “ disposal” of Jacob. Whether any of it should reach his hands depended on the exercise of the discretion of the trustees. If the devise to the children and their issue had been in undoubted words of limitation, the rule in Shelley’s case would not apply. An estate, such as gives room for the application of the rule, may be either legal or equitable, but to entitle him to take by limitation an estate of freehold must be vested in the tenant for life. Here, one interest was given to the ancestor, and an entirely different interest was devised to the children. The estate was vested in the trustees to support the | contingent remainder, charged with the burden, during his lifetime, 1 of the support of Jacob Gaul. ’

There is no doubt of the rule that where a clause in a will is obscure or ambiguous, words which manifest an intention on the part of the testator to dispose of his whole estate, are to be treated as favoring the construction, that he meant to pass a fee : Geyer v. Wentzel, 18 P. F. Smith 84. So, where a will contains no limitation over after a devise in remainder, that fact is to be weighed in support of the same construction in ascertaining the testator’s intention: Grove’s Estate, 8 P. F. Smith 432; Ogden’s Appeal, 20 Id. 504. But, when the meaning is clear from language that is unmistakable, the instrument interprets itself, and subsidiary facts are not to be introduced in order to create a doubt. This case is not one to require a resort to any merely illustrative elements of investigation.

In the second place, the accumulation of the income in the hands of the trustee during the lifetime of Jacob Gaul, are claimed by the appellant. It is contended that the moneys unexpended for his support and maintenance were his property, irrespective of the nature of the estate devised to him ; that they could not have passed as trust funds to his children, if he had left children, and that they do not go to the heirs of the testator for want of children, but to the administrator. This question is regarded as having been definitely determined by the case of Horwitz v. Norris, 13 Wright 213. Joseph Parker Norris had given one-sixth part of his Eairhill estate to trustees, with power to demise the premises and collect the rents, and with direction, after paying certain taxes and other charges, to apply the money they should receive to and for the maintenance, support and benefit of his son, Joseph Parker Norris, second, for and during the term of his natural life, in such way and manner, however, that the same or any part thereof, should not become subject or liable to the payment of any of his debts, present and future, and so that no creditor should ever be able to take, seize or enjoy the same or any part thereof.” Upon the death of his son, his children were to take the estate devised to him, in such proportions as he should appoint by will. In the exercise of this power, the son (Joseph Parker Norris, second), devised the estate, including rents accrued but not paid to the trustees at the time of his death, to trustees for the benefit of his wife for life as to one-third, and for the benefit of his children as to the residue. In deciding the case, Judge Strons said,, in speaking of the original will, “ this was not the creation of a legal or even of an equitable estate in the land. It was not a devise of renes and profits generally to the son, and therefore, in effect, a gift of the land. The income was committed to trustees, to be applied to his maintenance, support and benefit, and they were to exclude his creditors. He owned what he could dispose of by will as owner. And as he had not power apart from ownership over the income, it is impossible to see how that not received, whether due and payable, or only accruing at his death, can go either to his executors or the trustees appointed by him in his attempt to execute the power.” In Keyser v. Mitchell, 17 P. F. Smith 473, trustees were authorized to collect income and pay it, or such part of it as they should think proper, into the hands of the testator’s son Charles, or disburse it in such way as they should deem best for his comfortable support and maintenance. There was no provision protecting the income from the claims of the son’s creditors. It was held that it was payable at the discretion of the trustees ; that until the discretion was exercised the son had nothing: and that the money was not liable to attachment under a judgment against the son. The extent and character of a devisee’s estate depend on the qualities stamped on it, and the powers conferred over it by the testator, and not alone in the parties in whom the title is formally vested. There is no difference as to the question here between a legal and an equitable estate. If both had been clothed with unlimited dominion over the income, the essential title, that is, the beneficial ownership of Joseph Parker Norris, second, in Horwitz v. Norris, and that of Jacob Gaul, under this will, would have been identical. Here, the trustees, in providing for Jacob’s support, were to exercise their discretion. Only when they should pay it to him was he to have title to the income. He could not have assigned it or transmitted it by will. The administrator could receive it only on the theory that Jacob owned it. On that theory it would unquestionably be liable to the claims of his creditors, and the purpose of the testator vrould be wholly overthrown.

The remaining question relates to the part of the estate as to which the testator died intestate. The prayer of the petition to the Orphans’ Court was for a citation against the executrix of Frederick Gaul, Jr., and the executors of William Gaul, requiring them to “ file and settle the account of Frederick and William Gaul, trustees.” That prayer presented the specific subject of controversy. The trusts created by the will could have no connection with the intestate property. Under the pleadings, no question in relation to that property can now 'be reached.

Decree affirmed and appeal dismissed at appellants’ cost.

Agnew, C. J.

I shall not dissent, but I doubt as to the income accumulated in the lifetime of Jacob Gaul. The question is one of ownership, which the will itself decides by the gift of the corpus directly to him for life, which distinguishes this case from those cited ; while the control over the income by the trustees was merely to prevent its diversion, either by Jacob or his creditors, in his lifetime. At his death his ownership carried it into his estate for distribution.