Biddle's Appeal , 80 Pa. 258 ( 1876 )

Judgment was entered in the Supreme Court,

Per Curiam. —

The fourth item of the will of Henry <7. Biddle creates a trust of the residue of his estate, the purposes of which are expressed in the five clauses immediately following : The first clause expresses the first purpose, viz., to pay over the whole net income thereof to his wife, Mary D. Biddle, so long as she shall remain his widow, and his children shall be under age, to be used and applied by her to the maintenance, support and education of his children who may be under age, but without being called upon to give any account of the manner in which she may have applied it, as it is his wish that she shall have the absolute control of its use and disposition so long as she remains his widow. We are of the opinion, this created no s?z5-trust, but was purely the expression of a confidence in Mrs. Biddle, as to the use and disposition of the income to be paid to her. The created trust lay in those who were made trustees, to collect and pay over to her. When paid to her, the testator reposed a confidence in her that she would use it as her personal qualities (which he knew) and a mother’s affection and kindness would dictate, so long as no other ties interfered, and while their common offspring remained under tutelage. During this time, he had no reason to doubt that she would be the head of her family, and the kind mother and the painstaking friend of her children. His intent was, therefore, that tbe income should be paid over to her without legal responsibility as to its use and disposition, giving to her the absolute control of this use and disposition, without being called upon to give any account of the manner in which she might have applied it. But the time and the circumstances of this confidence were limited. It was during widowhood, when no adverse interest or hostile influence should counteract his beneficent intentions towards his children. It was only during minority, for the clauses following provide for the payment of income, and finally, the principal to the children themselves. The sub-trust now asserted is founded upon the absence of those qualities which the testator believed belonged to his wife, and upon her unnatural and selfish disregard of the interests of her own offspring. It is inconsistent, also, with exemption from liability to be called upon to give any account of the manner in which she shall have applied the income, and the absolute control of its use and disposition conferred upon her. All that was confided to her was necessarily involved in the use and disposition of the income, and over this her power was absolute without accountability for the manner of its exercise. If we say she shall account, even in the qualified manner contended for; that is to say, to state under oath, what sum has not been expended, this necessarily interferes with her absolute power to control the use and disposition. It may not now be expended, and it may be invested in securities in her own name; for in this mode alone can she retain the power to use and dispose of the fund; but what she shall in the future do with it, and how dispose of it for the best interests of her family, are a part of the discretion she has a right to exercise, and if we demand of her this residue because it is at this moment a surplus, we cut off her power to use and dispose of it hereafter, the very thing the testator conferred upon her. To demand an account at all, is necessarily to conflict with the purpose of the will, which was to leave her free to do as her judgment and affection would dictate. But it is said, she might abuse the confidence of the testator without remedy, under this construction. Not so. An utter perversion of the trust fund and no attempt to fulfil his confidence, stands on a different footing. But here there is no averment that she has failed to perform the duties to her children the confidence placed in her would dictate. She has not wasted and mismanaged the income. Circumstances have produced a surplus, and this surplus the petition avers she is holding for herself, and investing in her own name. But non constat, that the same qualities which invited the confidence of her husband, will not in the end result to the benefit of her children. Suffice it, however, to say, that the teststor has said in the most solemn act of his life, “ I trust her fully, completely, absolutely, and I will that she be not called to an account.”

In this view, it will be seen that the provision made for Mrs. Biddle in the second and third items of the will, are not in conflict with the first clause of the fourth item ; unless we assume, which we have no right to do, that she has been guilty of a perversion of the confidence. This can arise only from malversation, and the petition does not, and it is to be presumed cannot, allege this.

Decrees of the Orphans’ Court affirmed, with costs and the appeals dismissed in both cases.