Carson v. Fuhs

• Decision Date: 06 January 1890
• Docket Number: 229
• Citation: 131 Pa. 256,18 A. 1017
• Parties: ELIZA CARSON ET AL. v. ADAM FUHS ET AL
• Court: Pennsylvania Supreme Court

18 A. 1017

131 Pa. 256

ELIZA CARSON ET AL. v. ADAM FUHS ET AL

No. 229

Supreme Court of Pennsylvania

January 6, 1890

Argued November 6, 1889

APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY.

No. 229 October Term 1889, Sup. Ct.; court below, No. 461 April Term 1887, C.P. No. 2.

On April 2, 1887, a summons was served in an action of ejectment brought by Eliza Carson and others against Adam Fuhs and others, to recover the undivided ten elevenths of three lots of ground in the city of Allegheny. Issue.

At the trial on December 14, 1888, the following facts were shown:

On July 20, 1858, Stewart Hamilton became invested with the title in fee-simple to the whole of the property in controversy. On January 18, 1867, Stewart Hamilton, together with his wife Isabella, executed and delivered to their son, James Hamilton, a deed whereby, for the expressed consideration of "one dollar and natural love and affection and better maintenance of the parties for whose use this deed is made in trust," etc., they conveyed said property to him, his heirs and assigns, "in trust, nevertheless, for the use of the said Isabella Hamilton, wife of the said Stewart Hamilton, during her natural life, and at her decease then to her heirs in fee, share and share alike, and in the meantime to allow and permit her to receive to her own use the rents issues thereof, subject to the taxes and the costs of executing this said trust."

On October 30, 1867, James Hamilton made a deed, designating himself as "trustee of Isabella Hamilton and her heirs," and purporting, in consideration of one dollar to reconvey the property to Stewart Hamilton and his heirs. A part of the property, on February 25, 1868, was conveyed by Stewart Hamilton and Isabella, his wife, for the consideration of $3,000, to James Hamilton, who afterwards conveyed the same to the defendant, Adam Fuhs. The remainder of it was sold and conveyed by Stewart and Isabella Hamilton to Adam Fuhs by two deeds, dated respectively in 1869 and 1874. Fuhs took possession of the several parcels thus purchased by him and made valuable improvements on each of them.

Isabella Hamilton died July 8, 1885, intestate, and leaving to survive her her husband, Stewart Hamilton, and ten children and one grandchild as her heirs at law. All of said heirs except the oldest son, James Hamilton, named above, were joined as plaintiffs in this action. The surviving husband, Stewart Hamilton, was still living at the time of the trial.

At the close of the testimony the court, WHITE, J., instructed the jury to find for the plaintiff for the undivided ten elevenths of the property described in the writ, subject to the opinion of the court on the question of law reserved, to wit: Whether, on the deeds put in evidence, it being admitted that Stewart Hamilton, the husband of Isabella Hamilton, is still living, the plaintiffs are entitled to recover?

On February 2, 1889, the reserved question having been argued, the following opinion was filed, WHITE, J.:

The plaintiffs are children of Mrs. Isabella Hamilton, deceased, who was wife of Stewart Hamilton, and claim under a deed of trust executed by Stewart Hamilton and wife to their son James Hamilton, dated January 18, 1867, for three lots of ground in Allegheny City. The deed is to James Hamilton, his heirs and assigns, in fee-simple, with covenant of general warranty, "in trust for the uses hereafter mentioned," in consideration of "one dollar and natural love and affection and better maintenance of the parties for whose use this deed is made in trust," etc. The trust is in these words: "In trust nevertheless for the use of the said Isabella Hamilton, during her natural life, and at her decease then to her heirs in fee, share and share alike, and in the meantime to allow and permit her to receive to her own use the rents, issues thereof, subject to the taxes and costs of executing this said trust."

Nine months thereafter, October 30, 1867, James Hamilton conveyed back the premises to Stewart Hamilton, describing himself as "Trustee of Isabella Hamilton, and her heirs," in consideration of one dollar, but making no reference to the trust deed, or his title, and conveying in the usual form, as if the property was his own, with general warranty, signing his name simply, James Hamilton. Stewart Hamilton and Isabella his wife, subsequently, by deeds dated February 25, 1868, and January 12, 1869, conveyed two of the lots to James Hamilton, who conveyed to Adam Fuhs, and then by deed of April 30, 1874, Stewart Hamilton and Isabella his wife, conveyed the remainder to Adam Fuhs, who thus claims title to the whole. In none of their conveyances is there any reference to the trust deed from Stewart Hamilton and James Hamilton. Isabella Hamilton died July 8, 1885, leaving ten children, and her husband, Stewart Hamilton, who is still living.

The question of law reserved is, what title did Isabella Hamilton take by the trust deed? If she took merely a life estate, the plaintiffs are entitled to recover; if a fee, either under the rule in Shelley's Case, or by virtue of the statute of uses, they are not.

I think no question of estoppel can be raised against the plaintiffs during the life of their mother. All the deeds were duly recorded before Adam Fuhs bought. The trust deed was directly in the line of his title, and he had constructive notice of it. He paid his purchase money and made improvements at his own risk.

The rule in Shelley's Case is firmly established as a law of this state. While it is difficult to reconcile some of the decisions, the rule itself has never been denied, and no avowed effort made to defeat or evade it. The rule briefly stated is this: When by deed or will an estate in land is given to one for life, and at his death the remainder to his heirs in fee, the estate of the life-tenants is enlarged to a fee; the two estates are merged in one, and the first taker takes the whole.

The true test in the application of the rule is, did the grantor or donor intend that the remaindermen should take as heirs of the life-tenant? "The thing to be sought for is not the persons who are directed to take the remainder, but the character in which the donor intended they should take:" Guthrie's App., 37 Pa. 12; nor the intention that the first taker should have only a life estate; for that intention must be overthrown, if apt words are used to bring the case within the rule. The words "heirs" may be limited or modified by other unequivocal expressions in the deed or will; and other words than that of "heirs" may have the effect of bringing the case within the rule. "Any form of words sufficient to show that the remainder is to go to those whom the law points out as the general or lineal heirs of the first taker will enlarge the estate of the life-tenant into a fee by implication: Potts's App., 30 Pa. 170; McKee v. McKinley, 33 Pa. 93; Dodson v. Ball, 60 Pa. 493; Yarnall's App., 70 Pa. 341.

If the deed we are considering had been directly to Isabella Hamilton, "during her natural life and at her death then to her heirs in fee, share and share alike," there could be no doubt she would have taken a fee. The added words, "share and share alike" are not sufficient to take it out of the operation of the rule: Physick's App., 50 Pa. 136; Ogden's App., 70 Pa. 501. But the rule in Shelley's Case does not apply, unless both estates, for life and in remainder, are of the same quality, both legal or both equitable. Here the legal estate under the trust deed, is in the trustee, and Isabella Hamilton had only an equitable life estate. So had the remaindermen; but under the statute of uses, it became an executed trust as to them, and they took the legal estate in remainder, if the first taker had only a life estate.

Was it a dry or executed trust, also, as to her, so that she took the legal estate under the statute of uses? A dry, naked trust, where no duties are to be performed by the trustee, is a passive trust, and as a general rule, is executed by the statute. Active trusts where important duties are confided to the trustee, such as renting and managing the estate, investing money, distributing the proceeds, etc., are not within the operation of the statute. Others, not strictly active but passive trusts, will be saved where, (a) it is necessary for the protection of a married woman; (b) for the protection of a spendthrift child; (c) to support contingent remainders; (d) or to serve some other useful and lawful purpose. As the trustee had no duties to perform under this trust, it falls under the second class, passive trusts. The only ground for contending that it is saved from the operation of the statute is, that it was for the protection of a married woman. Mrs. Isabella Hamilton was the beneficiary, and the only one intended to be provided for by the deed of trust. Although the consideration is stated as, "one dollar and natural love and affection and better maintenance of the parties for whose use this deed is made in trust," yet the only person mentioned as interested in the trust, or whose maintenance is provided for, is Isabella Hamilton. The trustee is to "allow and permit her to receive to her own use the rents, issues thereof, subject to the taxes and cost of executing this said trust."

The object of creating a trust for a married woman is to save the property from the debts or control of her husband. Trusts for this purpose, or for one in immediate contemplation of marriage, will be sustained. "When an active trust is created, to give effect to a well defined purpose of a testator in reference to his family, the trust must be sustained whether the cestui que trust is sui juris or not:" Barnett's App., 46 Pa. 392; Earp's App. 75 Pa. 119...