In re Cannistra's Estate

• Decision Date: 13 March 1956
• Citation: In re Cannistra's Estate, 121 A.2d 157, 384 Pa. 605 (Pa. 1956)
• Docket Number: 4389
• Court: Pennsylvania Supreme Court
• Parties: In re ESTATE of Anthony CANNISTRA, also known as Tony Cannistra, deceased. Appeals of Anthony F. CANNISTRA and Rosetta DelSignore.

Page 157

121 A.2d 157

384 Pa. 605

In re ESTATE of Anthony CANNISTRA, also known as TonyCannistra, deceasedAppeals of Anthony F. CANNISTRA and Rosetta DelSignore.

Supreme Court of Pennsylvania.

March 13, 1956.

James M. Dente, Altoona, for appellant.

Mary L. Casanave, Leo C. Mullen, Altoona, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL, Justice.

A difficult question is presented by this appeal: Can a testamentary trust be terminated upon the petition of a nephew and niece who are beneficiaries thereunder?

No rule regarding wills is more settled than the great General Rule that the testator's intent, if it is not unlawful, must prevail!This is the reason why so may cases continually proclaim that the pole star in the construction of every will is the testator's intent.Moreover, 'The testator's intention must be ascertained from the language and scheme of his will: 'it is not what the court thinks he might or would have said in the existing circumstances or even what the court thinks he meant to say, but what is the meaning of his words'.In re Britt's Estate, 369 Pa. 450 , 87 A.2d 243, 244';In re Sowers' Estate, 383 Pa. 566, 119 A.2d 60, 62.

The foregoing century-old principle or rule is nevertheless subject to several exceptions: For example, the testator's intent cannot prevail when it is against public policy, In re Moorehead's Estate, 289 Pa. 542, 137 A. 802, 52 A.L.R. 1251;Cf. alsoIn re Africa's Estate, 359 Pa. 567, 59 A.2d 925; or violates the rule against perpetuities, In re Newlin's Estate, 367 Pa. 527, 80 A.2d 819, or statutory restrictions such as the statute of accumulations, In re Warden's Trust, 382 Pa. 311, 115 A.2d 159; or where the testator gives a fee simple or absolute estate and then attempts to impose restraints on sale or alienation ¹.In re Sowers' Estate, 383 Pa. 566, 119 A.2d 60, supra;Stineman v. Stineman, 382 Pa. 153, 114 A.2d 137.

The rules in this class of case are clear; difficulty sometimes arises in applying these rules, or in determining which rule applies to the facts of the particular case.That is the difficulty with respect to the will of Anthony Cannistra.

Testator gave his residuary estate to trustees in trust: ²'* * * to collect the income therefrom and to pay said income to my nephew, Anthony F. Cannistra, and my niece, Rosetta Cannistra, both children of my deceased brother, Nicholas Cannistra, share and share alike.³Said payments of income shall be made quarterly and shall continue until my said niece has attained the age of thirty (30) years, at which time the said trust shall terminate and my said trustee shall, from the corpus of said trust, pay to my said niece the sum of Five Thousand ($5,000) Dollars cash, and the entire balance of the corpus of said trust, less the expenses of administering said trust, shall then be paid or turned over by my said trustee to my nephew, Anthony F. Cannistra, aforementioned, absolutely whereupon said trust shall terminate.'

'In the event that my said niece, Rosetta Cannistra, should die before attaining the age of thirty (30) years, if my nephew, Anthony F. Cannistra, is still living, I direct that the entire income from said trust be thereafter paid to him and said trust continue until such time as my said niece would, if living, have attained the age of thirty (30) years.[There was no express gift of the entire corpus in that event.]

'In the event that my siad nephew, Anthony F. Cannistra, should die during the term of said trust and during the lefetime of my said niece, Rosetta Cannistra, then and in such event I direct that the entire income from said trust be thereafter paid to my said niece and the corpus of said trust be paid to said niece when she attains the age of thirty (30) years.'

The nephew and niece, neither of whom has attained the age of 30 years, seek in this proceeding to terminate the testamentary trust under the following exception to the aforesaid general rule, viz., 'If all the parties who are or may be beneficially interested in a trust are in existence and sui juris, if there is no ultimate purpose of any kind requiring the continuance of the trust, and if all the beneficiaries consent, a court of equity may decree its termination.[Citing cases.]'In re Bosler's Estate, 378 Pa. 333, 336, 107 A.2d 443, 444.

The key words are 'if there is no ultimate purpose of any kind requiring the continuance of the trust'.In order to answer the question raised by appellants it is wise to analyze some of the prior decisions of this Court, as well as Cannistra's will.

In Re Bosler's Estate, 378 Pa. 333, 107 A.2d 443, supra, the Court refused to terminate a testamentary (spendthrift) trust although the fund had been so depleted that the income therefrom was not adequate to support the petitioner, who was the life tenant with power of appointment in default of issue, and it was averred he was incapable of having issue.The Court said, 378 Pa. at pages 336, 337, 338, 107 A.2d at page 444: 'But if the purpose of the settlor in establishing the trust has not been fully accomplished, and if the settlor is deceased and therefore incapable of consenting, the trust cannot be terminated even though all the beneficiaries desire that it should be. In re Bowers' Trust Estate, 346 Pa. 85, 87, 88, 29 A.2d 519, 520, and cases there cited.

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'* * * The principle upon which the cases rest is the protection of the settlor irrespective of the welfare or interests of the beneficiary.It was said in Re Morgan's Estate (No. 1), 223 Pa. 228, 230, 231, 72 A. 498, 499, 25 L.R.A.,N.S., 236: 'It is always to be remembered that consideration for the beneficiary does not even in the remotest way enter into the policy of the law.It has regard solely to the rights of the donor. * * * the law's only concern is to give effect to the will of the donor as he has expressed it.''

Tersely expressed, Cannistra give his residuary estate to his trustees on an active trust to pay the income to his nephew and niece equally until the niece attained the age of 30 years, at which time to pay his niece $5,000 cash and his nephew the balance of the principal of the trust (approximately $25,000).He further provided, however, that if his niece died before attaining the age of 30 years, his trustees should pay the entire income to his nephew, if living, until such time as his niece would, if living, have attained the age of 30 years.It is not necessary to decide whether the niece's interest in one-half of the income and in the corpus of $5,000 was vested or vested subject to being divested (or contingent as to corpus).Testator further provided that if his nephew should die during the term of the trust and during the lifetime of his niece, then in such event the entire income should be paid to his niece and the entire principal should be paid to his niece when she attains the age of 30 years.Under such circumstances the nephew's interest in one-half of the income and in $25,000 principal was vested subject to being divested, and the niece's interest in said income and principal was contingent.

It is at once apparent that the trust is unusual in that while the same beneficiaries were to receive imcome and principal, they were to receive the income equally if they both lived until the niece was thirty, but they were to receive the principal unequally; moreover, the percentage of income and principal each was to receive depended upon and varied with different contingencies, namely, the death of the niece before thirty, or the death of the nephew during the term of the trust and during the lifetime of the niece.

It is clear as crystal that the testator's dominant paramount intent was--not (as appellants contend) to give his niece and his nephew a vested estate in a specific percentage of income and in a specific amount of principal and merely postpone its time of payment--(1) to place his entire residuary estate in an active trust for his nephew and niece until the niece attained, or would if leving, have attained, the age of 30 years, and (2) during this period to pay the niece and the nephew the income equally in some cases and unequally in other cases, and thereafter divide and pay the principal in varying percentages in accordance with whatever contingency happened.

Appellants contend that they are entitled at this time--in violation of the clear terms of the will and the testator's clearly expressed intention therein--to a termination of the trust and (so far as the record shows) to a payment of $5,000 principal to the niece and the balance of principal ($25,000) to the nephew.They base their contention on five decisions, all of which are clearly distinguishable because the wills were materially different form Cannistra's will.

In re Allen's Estate, 347 Pa. 364, 32 A.2d 301, 302, is the case upon which appellants principally rely.In Re Allen's Estate the Court commenced its opinion by stating: 'We must quash this appeal for the reason that the appellant[the husband of the testatrix] has no interest in the property which is the subject of the controversy.In re Behringer's Estate, 265 Pa. 111, 108 A. 414;Real Estate Trust Co. v. Pennsylvania Sugar Refining Co., 239 Pa. 456, 86 A. 1074.'All that the Court thereafter said was completely dictum.Assuming that the dictum was sound law, the language of that will differentiates, it, we repeat, form the Cannistra will.Mrs. Allen, the testatrix, left her residuary estate in trust to pay the income to her sister for life and in the event that her sister survived her, then upon her sister's death, should Eleanor and Carl Mehnert have arrived at the age of 30 years, the trust should cease and the principal should be paid to them share and share alike, '* * * but should they not have arrived at the age of thirty (30) years, * * * then I direct that the share of either or both of them be held in Trust * * * until,...