Appeal of Coggins

• Decision Date: 28 January 1889
• Docket Number: 98
• Citation: 16 A. 579,124 Pa. 10
• Parties: APPEAL OF MARY W. COGGINS.
• Court: Pennsylvania Supreme Court

16 A. 579

124 Pa. 10

APPEAL OF MARY W. COGGINS.

No. 98

Supreme Court of Pennsylvania

January 28, 1889

January 25, 1888, Argued; January 11, 1889, Re-argued

FROM THE DECREE OF THE ORPHANS' COURT OF PHILADELPHIA COUNTY.

No. 98 January Term 1888, Sup. Ct.; court below, No. 287 July Term 1878, O.C.

On June 3, 1886, was filed the final account of Passmore Williamson executor and trustee under the will of Thomas Williamson deceased. This account was called for audit on July 8, 1886 when the following facts appeared:

Thomas Williamson died testate on August 26, 1871, leaving a widow and four children, Passmore Williamson, Mrs. Mary W. Coggins Mrs. Anna W. Stackhouse and Mrs. Phoebe W. Eldridge; and eleven grandchildren, four of whom were children of Passmore Williamson, four of Mrs. Stackhouse, one of Mrs. Eldridge and two of Mrs. Coggins. Annie P. Coggins, one of the children of Mrs. Coggins, was born June 28, 1857, and died without issue on May 8, 1881. Paschal Coggins, the husband of Mrs. Coggins, died November 17, 1883.

At the date of this proceeding the testator's widow was dead, and there were then the ten grandchildren living, the most of whom were over twenty-five years of age. None had reached that age at the testator's death. No grandchildren had been born after testator's death.

The will of Thomas Williamson, dated September 12, 1869, after giving certain legacies, devised and bequeathed the residuary estate to his son Passmore Williamson, his heirs, executors and administrators, but nevertheless in trust to manage the whole thereof carefully so as to preserve and keep the same productive of income; to collect and receive the income thereof and after deducting taxes, cost of repairs, and necessary expenses including a commission, the clear net income to pay over in half-yearly payments: One equal fifth part thereof to his wife, one other equal fifth part to each of his three daughters naming them, and the other equal fifth part to keep and retain to his own use:

"And in all cases, payments of income to each of my said daughters shall be deemed to be for her sole and separate use, free from the control and without liability for the debts, contracts, or engagements of her present or any future husband; and upon and after the decease of my wife, to continue the management, as aforesaid, for the benefit of my said four children, and so distribute and pay the whole net income of my residuary estate as that each of them shall receive an equal fourth part thereof, in half-yearly payments, from time to time during his and her respective natural life; and, upon the decease of either one of my said children, and successively of each of them, then as respects one equal fourth part of the corpus or principal of my residuary estate, to and for the only proper use of his or her child, or all of his or her children, if more than one, who shall have attained, or shall attain, the age of twenty-five years, and the issue of any such who shall have died, or shall die, under that age leaving issue, in equal shares; so, however, that the issue of any such deceased child, if more than one person, shall take equally among them such share only as their parent would have taken, if living; but, if either of my said children shall die without leaving a child, or issue of a child, him or her surviving, then as respects the share of any residuary estate abovelimited to the use of his or her child or children, I will and direct shall be held for the equal use and benefit of my other children, and their respective issue, upon and subject to the trusts and limitations hereinbefore expressed and contained."

By a codicil to said will, dated September 30, 1870, it was provided:

"That the principal proceeds of all the residue of my estate, real and personal, other than and exclusive of my children's indebtedness to me, or that of either of them for advancements, etc., as shall be represented and charged in my ledger accounts, shall be reserved and preserved for all my grandchildren in equal shares per capita; and therefore I will and direct that when, according to the limitations and provisions of my said will, any one, and successively as each, of my grandchildren shall become entitled to receive his or her equal portion of my estate, the same shall be determined and limited by the quotient of the whole reserved principal, divided by the whole number of my grandchildren then living, and the issue of such of them as shall have previously died leaving issue: Provided always, that the issue of my deceased grandchild, if consisting of several persons, shall together represent the interest their deceased parent would have been entitled to if living, and shall be counted as one person only in the division aforesaid; and also, if after any one or more of my grandchildren shall have received his, her, or their respective portion of my estate, ascertained as aforesaid, one or more of the others of them shall die without issue surviving, in such case I direct that so much and such portion of my estate as he, she, or they who shall have died without issue would have been entitled to receive if living, shall go and be payable in equal shares to all the others of my grandchildren living, and the issue of any of them then dead, at the times in and by my will specified and limited."

This codicil further provided, as to the children of Mrs. Stackhouse, that if their father should survive their mother, no part of their portions, beyond what was necessary for their comfortable support, should be paid to them during his lifetime.

In the account filed, there was a balance shown of $48,453, due the estate as of the principal thereof. On the credit side, was an item for loss on investments of $114,944.56. It was admitted that this latter amount had been lost by the accountant in stock speculations and investments in unauthorized securities. The credit claimed was therefore disallowed, and being added to the balance shown by the account, made the balance of the principal of the estate, $163,397.56.

On behalf of Mrs. Mary W. Coggins, it was claimed that one fourth of this balance should be awarded to her, on the ground that the limitation of the remainder to the grandchildren of the testator was void, because within the rule against perpetuities.

On November 1, 1886, the auditing judge, HANNA, P.J., filed an adjudication, which after stating the facts proceeded:

The question thus presented is whether there is a valid trust under the will of the testator. By his will, after certain specific bequests, he devised and bequeathed all the residue of his estate to accountant in trust, the duties of which, it needs no authorities to establish, clearly constituted and created an active trust; the net income to be divided into five shares, one of which to be paid to testator's wife for life, one to accountant, and the three remaining shares to testator's three married daughters for their sole and separate use. . . .

After a careful consideration of the entire will, the intention of testator is made clear that upon the death of either of his children leaving issue, the latter, his grandchildren, shall take equally their parent's share, provided they have then attained twenty-five years of age, or of those living under that age, when they shall attain that age. Their right to take thus depends upon a contingency. The gift is not direct to the grandchildren unconditionally, but upon the condition that they reach a prescribed age. The vesting is consequently postponed, and if this be beyond the period allowed by law, the estate in remainder thus attempted to be created is void. The remainder to be valid must surely take effect within twenty-one years after the termination of the life estate: Davenport v. Harris, 3 Gr. 164. If it exceeds this period, it is void in its creation: Davenport v. Harris, supra; Hillyard v. Miller, 10 Pa. 334; Smith's App., 88 Pa. 495. When a gift is infected with the vice of its possibly exceeding the prescribed limit, it is at once and altogether void both at law and in equity: Williams on Real Property, 262.

The gift to the grandchildren may possibly exceed the limit allowed by law, by the death of either of testator's children leaving at the date of their decease children surviving less than four years of age. It could not be ascertained whether they would inherit any portion of their parent's share until they lived to attain the age of twenty-five years. And thus the parent's share might possibly be withheld from distribution almost the whole period of twenty-five years. This result it must be conceded would be a palpable violation of the rule against perpetuities. The gift in this instance is to a class, all the grandchildren, their parents being living; and the members of this class cannot be ascertained within the limits of perpetuity. In such case, the gift is void: Leake v. Robinson, 2 Mer. 363, and other cases cited in Theobald on Wills, 436. If the remainder is void to any of the persons entitled to take, it is void in toto.

Without a further discussion of the question, the proper conclusion seems to be, that the remainder contravenes the law against perpetuities, and cannot be sustained. The testator therefore made no disposition of the residue of his estate, and it is disposed of by the intestate law. His children then are entitled in equal shares, and, as they are given by the will a life estate, and by the law an absolute estate, it follows that the two must coalesce, the less with the greater estate, the life estate with the fee, and they become entitled absolutely to one fourth part of the trust estate.

The auditing judge then made a distribution awarding one fourth of the balance of principal due the estate, after...