Philadelphia Trust, &C. Co. v. Guillou
| Decision Date | 08 May 1882 |
| Citation | 100 Pa. 254 |
| Parties | Philadelphia Trust &c., Co. <I>versus</I> Guillou. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and GREEN, JJ. STERRETT, J., absent
ERROR to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term 1882, No. 225.
Rowland Evans and R. L. Ashhurst, for the plaintiffs in error.—Under the trust in the will of Franklin Fell, whereby the income of the premises in question was directed to be paid to his son, Wm. Jenks Fell, free from liability to his debts or engagements, the assignee for creditors of the firm of which the cestui que trust was a member, can in no event be entitled to the rents, as against the trustee under the will. The right of the cestui que trust to "use and occupy" the premises, did not authorize him to lease, so that the rent, in the hands of the tenant, could be liable to his debts or engagements, as a member of the firm or otherwise.
Gorge Junkin, for the defendant in error.—Wm. Jenks Fell occupied the premises under the option in his father's will; rented them to his firm; himself received two months' rent, not as trustee, but in his individual capacity, for he swore in his petition for discharge as trustee, that he had never received any money as trustee, or acted in that capacity. He, therefore, as a partner, could not distrain. The trustee could not distrain because they had never assumed to act as trustee, until Wm. J. Fell was discharged, which was after the failure of the firm. They had not rented the premises to the firm. Mr. Wm. Jenks Fell, having exercised his option to occupy the premises in his own right, free from the trust, and having leased them to his firm, neither he nor the trustee can now fall back on the terms of the trust, in order to withdraw the arrears of rent from the firm's creditors, for his private benefit as cestui que trust.
It is unnecessary to examine and discuss the assignments of error seriatim. One error we think runs through, and affects them all. The learned judge below erred in affirming the defendant's ninth point, viz: "If the jury find that William J. Fell, individually, was the landlord of the firm, for the store and mill, then this action cannot be sustained, and the verdict must be for the defendant." The whole case, it will be seen, was made to turn upon the question of fact whether William J. Fell received rent from the firm as an individual, or as a trustee. We think that this was an immaterial question.
The issue under the agreement of the parties, was simply whether the rent claimed was a part of the trust estate of Franklin Fell, and if so, the plaintiffs as substituted trustees under his will were clearly entitled to it. The mill and store in question were a part of that trust estate. By the will the property was devised, inter alia, to his son William, and the Fidelity Trust Co., "in trust to let and manage the real estate, and to collect, recover and receive the rents, and income thereof, or to allow my said son William Jenks Fell, at his option, to use and occupy any lands, messuages or tenements, belonging to my said estate, from time to time during his natural life, the taxes, assessments and repairs thereof to be paid out of the income of my...
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Patrick v. Smith
... ... dated July 23, 1879, Henrietta Catherwood conveyed all her ... property to the Philadelphia Trust, Safe Deposit and ... Insurance Company, in trust to pay her the income during her ... 473; ... Overman's App., 88 Pa. 276; Thackara v. Mintzer, ... 100 Pa. 151; Trust Co. v. Guillou, 100 Pa. 254 at ... 258; Brooks' Estate, 140 Pa. 84, 21 A. 240. An ... instructive instance of ... ...
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...If the intention were doubtful, the language would be so construed as to make the provision legal. But the decision in Phila. Trust etc. Co. v. Guillou, 100 Pa. 254, construing language similar to that of the present clearly shows the unsoundness of the argument that this money would be pro......
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