Holliday v. Hively
| Decision Date | 07 January 1901 |
| Docket Number | 70 |
| Citation | 198 Pa. 335,47 A. 988 |
| Parties | Holliday v. Hively |
| Court | Pennsylvania Supreme Court |
Argued October 24, 1900
Appeal, No. 70, Oct. T., 1900, by defendants, from judgment of C.P. No. 2, Allegheny Co., April T., 1898, No. 919, on verdict for plaintiff in case of George L. Holliday v. Jennie Hively et al. Reversed.
Scire facias sur mortgage. Before WHITE, P.J., who stated the facts to be as follows:
1. April 21, 1886, Barbara C. Elsey died, and by her will provided as follows:
"As to my real estate, to wit, the dwelling in which I now reside, I give, devise and bequeath the same to my executors hereinafter named, with full power to sell the same as a whole, or in parts or lots, and to give good and sufficient deed or deeds for the same to the purchaser or purchasers." The proceeds were to be divided between her son Warren Elsey and her daughter, Jennie Hively -- Warren was first to have $625 out of the proceeds, the balance to be divided equally; as to the share of Mrs. Hively, the will provided: "I give, devise and bequeath the same to my daughter Jane Hively, wife of Harry Hively, for her sole and separate use independently of her present or any future husband." "Lastly, I nominate and appoint my son Warren Elsey and my daughter Jane Hively executors of this my last will and testament, with full power to execute the same in all its parts."
2. On June 17, 1886, Warren Elsey and Jane Hively elect to take the real estate and execute partition deeds, Jane Hively and her husband conveying a part, with the dwelling house, to Warren Elsey; and Warren Elsey and wife conveying the other part which was unimproved, to Jane Hively. Possession was taken in pursuance of these partition deeds, and retained ever since.
3. October 26, 1887, Jane Hively and husband executed a mortgage on her lot to Jos. P. Reed for $2,400, borrowed money, which was expended in improving her lot.
4. November 23, 1892, Jane Hively and husband executed a mortgage on her lot to the plaintiff, for $2,400, money borrowed, to pay the Reed mortgage, with which it was paid off.
5. September 18, 1897, after the plaintiff's mortgage was due, and eleven years after the partition deeds, Mrs. Hively had the orphans' court appoint the Fidelity Title & Trust Company trustee of her estate under the will of her mother.
6. February 14, 1898, twelve years after they had executed partition deeds, which had been duly recorded, Warren Elsey and Jane Hively executed a deed, ostensibly as executors of Barbara C. Elsey to the trustee for her lot.
The court gave binding instructions for plaintiff.
Verdict and judgment for plaintiff. Defendant appealed.
Error assigned was in giving binding instructions for plaintiff.
S. W Cunningham, with him Thomas D. Chantler and William M. McGill, for appellants. -- This will is not ambiguous, and the words employed are the apt and appropriate words to create a separate use trust: 2 Perry on Trusts (3d ed.), secs. 647, 648; Wallace v. Coston, 9 Watts, 137; Rogers v. Smith, 4 Pa. 93; Rigler v. Cloud, 14 Pa. 361; Wright v. Brown, 44 Pa. 224; McMullin v. Beatty, 56 Pa. 389; Wells v. McCall, 64 Pa. 207; Richardson v. Aiken, 104 Pa. 567; Peoples Savings Bank v. Denig, 131 Pa. 241; Hays v. Leonard, 155 Pa. 474; Wilbert's Estate, 166 Pa. 113.
A separate use trust may be created of and concerning personal property as well as of real estate: 2 Perry on Trusts (3d ed.), sec. 665; Penna. Co. for Ins. on Lives v. Foster, 35 Pa. 134; Megargee v. Naglee, 64 Pa. 216; McMullin v. Beatty, 56 Pa. 389; Wells v. McCall, 64 Pa. 208; Reiff's App., 60 Pa. 361; Page's Est., 75 Pa. 87; Quin's Est., 144 Pa. 444.
The intervention or nonintervention of a trustee to hold the legal title to protect the separate use, is immaterial: Wright v. Brown, 44 Pa. 224; MacConnell v. Lindsay, 131 Pa. 487; Shonk v. Brown, 61 Pa. 320; Richardson v. Aiken, 104 Pa. 567; 2 Perry on Trusts (3d ed.), sec. 647.
The rule in Pennsylvania, before and since the acts of 1848, 1887 and 1893, respecting real or personal estate held by or for a married woman to her sole and separate use, with or without a trustee, is, that neither she nor her husband, nor both together, can transfer, convey or mortgage it during the lifetime of her husband, unless the power to do so is expressly given by the instrument under which she acquired her title: Lancaster v. Dolan, 1 Rawle, 231; Maurer's Appeal, 86 Pa. 380; Wright v. Brown, 44 Pa. 224; Penna. Co. for Ins. on Lives v. Foster, 35 Pa. 134; McMullin v. Beatty, 56 Pa. 394; Shonk v. Brown, 61 Pa. 320; Twining's Appeal, 97 Pa. 36; MacConnell v. Lindsay, 131 Pa. 476; Shalters v. Ladd, 141 Pa. 349; Quin's Estate, 144 Pa. 444; Hays v. Leonard, 155 Pa. 474; Wilbert's Estate, 166 Pa. 113; 2 Perry on Trusts (3d ed.), sec 655.
Thomas Patterson, with him Kirk Q. Bigham, for appellee. -- The legal title to the real estate passed to the executors, as such, for the purpose of sale and distribution of the proceeds among the parties entitled thereto. Whether they are called executors or trustees, the mere designation makes no difference; they are clothed with the legal title for certain purposes which are specified in the instrument creating the trust.
Nor does it make any difference that there are two executors named in the will. Each is as much a trustee, has as much power over the assets, as though acting alone: De Haven v. Williams, 80 Pa. 480; Woods's Appeal, 92 Pa. 379; Fesmire v. Shannon, 143 Pa. 201.
The two positions of trustee and cestui que trust are incompatible: Hahn v. Hutchinson, 159 Pa. 133; Patrick v. Bingaman, 2 Pa. Superior Ct. 113; Chrisman v. Sener, 162 Pa. 577.
Even though the trust were held to be valid, the mortgage in suit is nevertheless good as an exercise of a power clearly given in the trust instrument: Lancaster v. Dolan, 1 Rawle, 237; Chrisman v. Wagoner, 9 Pa. 473; Bailey v. Allegheny Nat. Bank, 104 Pa. 425.
Before McCOLLUM, C.J., MITCHELL, FELL, BROWN, MESTREZAT and POTTER, JJ.
If the estate of Jennie Hively, the appellant, was absolute in fee simple in the property which she and her husband undertook to mortgage to the appellee, the judgment entered on the verdict must be affirmed; but if it was a separate use trust, her mortgage was worthless, and the judgment cannot be sustained. She was the daughter of Barbara C. Elsey and the estate which she held came to her under the following clause in her mother's will: The executors did not sell the real estate, but the son and daughter made an amicable partition of it, and that part taken by the appellant was mortgaged to the appellee.
The words of the will so clearly create a separate use trust for the daughter, a feme covert at the time of its execution, and still continuing so, that no one of the many cases from Lancaster v. Dolan, 1 Rawle, 231, down to Wilbert's Estate, 166 Pa. 113, need be cited to declare what they mean. The intention of the mother was to give the daughter an estate for her enjoyment, free from any dominion over it by the husband, safe from his improvidence or importunities and with no power in either of them or both together, to dispose of it during the coverture of the wife and the very words that should have been used, were adopted in creating and giving it. If the testatrix so intended that her daughter should have only a separate use, her intention could not be defeated by the act of her children in dividing her real estate between them, instead of the proceeds of a sale of it by the executors. If these children, who are the executors, had sold the property, the daughter's share would have been "for her sole and separate use, independently of her present or any future husband," and, though personalty, would have been a separate use trust: Penna. Co. for Ins. on Lives v. Foster, 35 Pa. 134; Megargee v. Naglee, 64 Pa. 216; Bailey v. Allegheny Nat. Bank, 104 Pa. 425. Having unequivocally elected, as was her right, to take a portion of the land instead of the proceeds of a sale of it, as her share of the estate, given and devised to her, the interest of the daughter in the mother's estate from the time her election was exercised, became land: Brownfield v. Mackey, 27 Pa. 320; Evans's App., 63 Pa. 183; Bailey v. Allegheny Nat. Bank, 104 Pa. 425; Howell v. Mellon, 189 Pa. 169; but the interest continued to be only such as had been given by the will of the mother. No absolute estate in fee simple had passed to the daughter under that instrument, and in the face of its plain and express terms no act of hers could enlarge the separate use trust created for her support, and not for her alienation. If she had the power to convey or mortgage, it must be found in the will, either in express terms or by implication, and if it cannot be there found, it did not exist when she executed the mortgage to the appellee. It is hardly required of us to cite a single one of our many deliverances in support of this, and in passing we need do no more than call attention to the following from ...
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Holliday v. Hively
... 47 A. 988198 Pa. 335 HOLLIDAY v. HIVELY et al. Supreme Court of Pennsylvania. Jan. 7, 1901. Appeal from court of common pleas, Allegheny county. Action by George L. Holliday against Jennie Hively and husband to foreclose a mortgage on land given by defendants. Judgment for plaintiff. Defen......