Dodson v. Ball

• Decision Date: 11 May 1869
• Citation: 60 Pa. 492
• Court: Pennsylvania Supreme Court
• Parties: Dodson <I>versus</I> Ball.

60 Pa. 492

Dodson versus Ball.

Supreme Court of Pennsylvania.

February 9, 1869.

May 11, 1869.

February 9th 1869.

Before THOMPSON, C. J., AGNEW and WILLIAMS, JJ. READ, J., at Nisi Prius. SHARSWOOD, J., absent.

This was a certificate from Nisi Prius: No. 28, to January Term 1869: In Equity.

S. Wakeling and E. K. Price for appellant.—Mrs. Dodson, now discovert, has the equitable estate, without any active trust in the trustee, for life, with the fee; for the limitation over is to her heirs. This is a dry trust, or a use executed: Smith v. Starr, 3 Whart. 62; Hammersley v. Smith, 4 Id. 126; Steacy v. Rice, 3 Casey 75; Dubs v. Dubs, 7 Id. 149. Trustee is not to receive and to pay to her the income; as in Barnett's Appeal, 10 Wright 392; and Bacon's Appeal, 7 P. F. Smith 504. A trustee only takes the legal estate while it subserves an active trust: Hawkins on Wills 143; Hill on Trustees 239; Nice's Appeal, 14 Wright 143; McBride v. Smyth, 4 P. F. Smith 245. The direction to convey to the heirs does not, in our state, decide that the legal title is in him: Nice's Appeal, Bacon's Appeal, supra. "The legal title remains severed from the beneficial ownership so long only as there is any useful purpose, or substantial reason, for maintaining a separation." A separate use for a woman cannot be created, unless she is covert, or unless in immediate contemplation of marriage. Though a special active trust may be created for man or woman single. To give operation to the rule in Shelley's Case, it is not necessary that the word heirs should be used, if heirs, and all who can be heir, are included in the description of those who are to take: Fearne on Rem. 188, 192, 194; Smith on Executory Interests, §§ 433, 434; Ralston v. Waln, 8 Wright 281; Physick's Appeal, 14 Id. 128.

C. E. Lex, for defendant.

The opinion of the court was delivered, May 11th 1869, by AGNEW, J.

Two opposite principles underlie the doctrine of trusts, private dominion and public policy. Each has predominated, as the judicial mind has inclined to the one or to the other. The right to control the disposal of property is fundamental; and yet this right must be regulated so as not to conflict with high public interests. In this state the current set in strongly in favor of the former in Lancaster v. Dolan, 1 Rawle 231; wherein Chief Justice Gibson defended with great force the donor's right to control his gift in behalf of a married woman. That case was followed by many on that side, and among them are Fisher v. Taylor, 2 Rawle 33; Pullen v. Reinhard, 1 Whart. 520; Thomas v. Folwell, 2 Id. 11; Smith v. Starr, 3 Id. 62; Dorrance v. Scott, Id. 309; Holdship v. Patterson, 7 Watts 547; Wallace v. Coston, 9 Id. 137; Cochran v. O'Hern, 4 W. & S. 95; Ashhurst v. Given, 5 Id. 323; Rogers v. Smith, 4 Barr 93; Eyrick v. Hetrick, 1 Harris 491. The current, checked by Harrison v. Brolaskey, 8 Harris 299, was turned in the opposite direction by Kuhn v. Newman, 2 Casey 227, and ran then violently in favor of the policy of striking down trusts. That case was followed in the same direction by Whichcote v. Lyle, 4 Casey 73; Williams v. Leech, Id. 89; Price v. Taylor, Id. 95; Bush's Appeal, 9 Id. 85; Naglee's Appeal, Id. 89; McKee v. McKinley, Id. 92; and Kay v. Scates, 1 Wright 31. This counter-current received a check in Guthrie's Appeal, 1 Wright 9, which overthrew Williams v. Leech, and strongly denied some of the positions of Price v. Taylor, Naglee's Appeal, and McKee v. McKinley. In Guthrie's Appeal, Woodward, J., who before had been overborne by numbers, after a graceful compliment to the principle of stare decisis, gave his adherence to the new majority. But the counter-current, which had been merely checked in Guthrie's Appeal, gathering force, prevailed again in Kay v. Scates, the opinion, however, looking one way, while the judgment faced another, ruling the case by Kuhn and Newman and Bush's Appeal. After spending its force in that direction, the current began to change with Ralston v. Waln, 8 Wright 279, and in Barnet's Appeal set back strongly in its former direction, in favor of the donor's control, and has so continued. Barnet's Appeal was followed by Girard Life Insurance and Trust Co. v. Chambers, 10 Wright 485; Shankland's Appeal, 11 Wright 113; Physick's Appeal, 14 Wright 128; Nice's Appeal, Id. 143; Sheets's Estate, 2 P. F. Smith 267; Wickham v. Berry, 5 Id. 70; Freyvogle v. Hughes, 6 Id. 228; Bacon's Appeal, decided at Philadelphia, 1868, 7 P. F. Smith 514, and Rife v. Geyer, decided at Pittsburg, 1868, 9 Id. 393. The result of these conflicting principles and authorities is, that it is difficult to determine cases lying along the border. The present, in some of its aspects, is one of that kind. In order to decide it, it will be proper to refer to some leading and established principles in the doctrine of trusts. Trusts are of two kinds, simple and special: Vaux v. Park, 7 W. & S. 25. In the former, the trustee is passive and performs no duty; and the trust is there purely technical. In the latter he is active, being an agent to execute the donor's will; and the trust is operative. A simple trust gives to the cestui que trust a right to the possession, control and disposal of the property, and the legal estate becomes executed in him, unless when it is necessary to remain in the trustee to preserve the estate for the cestui que trust, or to pass it to others. A special trust, on the other hand, maintains the legal estate in the trustee, to enable him to perform the duties devolved on him by the donor; and gives to the cestui que trust only a right in equity to enforce the performance of the trust: Ibid.; See also Barnet's Appeal, 10 Wright 400; Rife v. Geyer, supra. And where the trust is not active the legal estate will remain in the trustee so long as it is necessary to preserve the estate itself, as in the case of a trust for a married woman to protect the estate from her husband; or a trust for a spendthrift son to protect it from his creditors; or to preserve contingent remainders: Lancaster v. Dolan, 1 Rawle 247; Pullen v. Reinhard, 1 Whart. 520; Thomas v. Folwell, 2 Id. 11; Wright v. Brown, 8 Wright 224; Fisher v. Taylor, 2 Rawle 33; Holdship v. Patterson, 7 Watts 547; Ashhurst v. Given, 5 W. & S. 323; Eyrick v. Hetrick, 1 Harris 491; Brown v. Williamson, 12 Casey 338; Barnet's Appeal, 10 Wright 409; Rife v. Geyer, supra. As a consequence, it is a general principle, that a simple or passive trust cannot continue the legal estate in the trustee, except for a proper and useful purpose, such as the law will regard and protect, and as soon as the purpose fails or ceases to exist, the legal estate becomes executed in the cestui que trust. In the former case, equity preserves the trust to give effect to the donor's right of dominion over his property, and in the latter, in favor of public policy, permits it to fall as useless: Freyvogle v. Hughes, 6 P. F. Smith 228; McBride v. Smyth, 4 Id. 250; Rife v. Geyer, supra.

In view of these principles, let us examine the trust in this case. Its principal features are these: Harriet S. Ball, the grantor as well as the cestui que trust in the deed, was the absolute owner of the property. She was a feme sole, without a marriage then in prospect. The coverture which took place two and a half years afterward, had ceased by the death of her husband. The only useful purpose visible in the deed was the preservation of her property to her sole use, during a coverture that might take place (it being before the Act of 1848), and its transmission, by will or descent, if she died during coverture. The trust is purely passive, requiring no active duty except conversion for her benefit and advantage. That and the ulterior trusts are in point of fact immaterial and useless after coverture has ceased. There being no marriage in contemplation, and the subsequent coverture being ended by the death of Mrs. Dodson's husband, the trust must fall and the legal estate be executed in her, unless it is necessary to support it as an independent provision for children or others who can claim hereafter as purchasers under the deed. The only ground even for a question on this point, grows out of the primary limitation to herself for life. If upon that she has engrafted a remainder to vest the estate in certain persons as purchasers by description, and not as heirs, it raises the question, whether she has lost the control of her own property by such a provision, without a marriage in view or one now in existence. If the trust, as expressed, does not in fact break the course of descent, there seems to be no good reason to interpret it so as to divest her of her control of her own property, and the trust should fall.

The rule laid down is, that when an estate for life only is given, followed by a general power of appointment, and on failure to appoint, to children or to special heirs, the power to appoint will not enlarge the estate of the cestui que trust to a fee, and on a failure to appoint, the children or special donees in remainder take by purchase from the donor, and not by way of limitation as heirs of the cestui que trust: 4 Kent's Com. 663; Smith v. Starr, 3 Whart. 66; Anderson v. Dawson, 15 Vesey, Jr. 532; Girard Life Insurance and Trust Co. v. Chambers, 10 Wright 490. A limitation to heirs on a failure to appoint, unquestionably enlarges a life estate to a fee by the union of estates: Ralston v. Waln, 8 Wright 279; Physick's Appeal, 14 Id. 128; Nice's Appeal, Id 143. The question is then, what effect should be given to the language of the ultimate limitations in this case. These are as follow: "And upon the decease of the said Harriet S. Ball, then do and shall grant and convey the said premises unto such person or persons, and for such estate and estates as the said Harriet S. Ball, by any instrument of writing, in the nature of a will, under her hand and seal, executed in the presence of two or more subscribing...