Kay v. Scates

• Citation: 37 Pa. 31
• Parties: Kay <I>versus</I> Scates.
• Decision Date: 07 January 1861
• Court: United States State Supreme Court of Pennsylvania

Page 31

37 Pa. 31

Kay versus Scates.

Supreme Court of Pennsylvania.

January 7, 1861.

THIS was a bill in equity brought by J. Alfred Kay, William H. Furness, Jr., and Hannah, his wife, formerly Hannah Kay, and Mary Kay, against Charles W. Scates and Edwin R. Cope, executors under the will of James Kay, deceased, who died April 22d 1856, and set sforth that the testator devised one-third of his

estate (with the additional bequest of $5000 absolutely to J. Alfred Kay) to each of the complainants for life, with a power of appointment in favour of the issue of their bodies, and in default of such appointment, then to such issue, and in default of any issue, to the testator's heirs at law by consanguinity, directing the same to be held in trust by the defendants.

Hopper, for complainants.—The trust contained in the will is not a special trust, which the statute of uses does not affect, but a trust general, upon which the statute executes the possession.

Where the entire beneficial interest is given to the cestui que trust, in Pennsylvania the trust will not be considered a trust special, unless there is some legal disability in the cestui que trust.

The trust must support a lawful interest beyond that held and

enjoyed by the cestui que trust, and, as a consequence, the trustee must have such a duty to perform as can only be done by the legal seisin remaining in him.

The entire beneficial interest having been given to J. Alfred Kay, the trust in his favour, after his attaining the age of twenty-five years, becomes a legal interest, there being no disability requiring protection: Smith v. Starr, 3 Whar. 62; Hammersly v. Smith, 4 Whar. 126; Nash v. Nash, 3 Barn. & Adol. 839; Kuhn v. Newman, 2 Casey 227; Bush's Appeal, 9 Casey 85. The attempted limitation for life is an estate of the same nature as that limited over; they are both legal and will unite by the rule in Shelly's Case, 2 Jarman 244; Pratt v. McCawley, 8 Harris 264; Hileman v. Bonslaugh, 1 Harris 344. The limitation over is to issue of the body, which, in their first and ordinary meaning, are words of limitation: 2 Jarman 235; Middleworth v. Collins, 1 Phil. Rep. 139; Haines v. Witmer, 2 Yates 400; Eichelberger v. Barnitz, 9 Watts 450; Clark v. Baker, 3 S. & R. 477. The case in 1 Co. 66, Archer's Case, is not applicable; there the issue were, by other words, made the root of a new inheritance. The power of appointment will not defeat the application of the rule in Shelly's Case; 2 Crabbe on Real Estate 34; King v. Melling, 1 Ven. 214; Carter v. McMichael, 10 S. & R. 429.

The cases of Reese v. Steel, 2 Sim. 233; Robinson v. Robinson, 1 Burr. 38; and Paxon v. Lefferts, 3 Rawle 59; contain the principle applicable to the case here, and decide that the estate of the devisees is an estate in fee simple: Clark v. Baker, 3 S. & R. 470, is to the same effect.

The estate tail is, by the Act of 1855, enlarged to an estate in fee simple.

If the devises were taken to be estates for the life of the children only, with remainder to the issue as purchasers, which, in the present case, would be contingent remainders, the children having also the fee simple title by descent, they could by deed make conveyances in fee simple, in which case the two estates would not open to let in the contingent remainders: Stewart v. Kenower, 7 W. & S. 288; Bennett v. Morris, 5 Rawle 9; 2 Jarman 245, 246; Nash v. Nash, before cited. The reasoning is alike applicable to each of the shares.

Nagle's Appeal, 9 Casey 89, is an authority that a deed from the trustees would be proper.

Pancoast, for respondents.—I. It is clearly the intention of the testator that complainant should only take a life estate. The words superadded are words of purchase, and not words of limitation; and, by the words of the will, "any the issue of his body," an indefinite succession of lineal descendants is not meant. The word "issue" is ambiguous in a will, and does not imply in itself the idea of inheriting: Earl of Oxford v. Churchill, 3 Ves. & Bea. 67. There is a less degree of presumption against construing the word "issue," than the words "heir of the body," to be words of purchase: Smith on Ex. Interests, § 525.

The words "any the issue of his body," are first used by the testator to describe those among whom the donee has the power to appoint. They must be held here to describe a class among whom the appointment is to be made, and must be living in the lifetime of the donee: Sug. on Powers 475; Hockey v. Mawley, 1 Ves. Jr. 143, and note 4 to p. 152; Paul v. Compton, 8 Ves. 380. The same words are used to describe those to take in default of appointment, and they must be taken to have the same meaning, there being nothing in the will from which a different meaning can be inferred: 2 Jar. on Wills 527.

Besides, this is the most simple and natural meaning. If the devise was on an indefinite failure of issue, it must equally limit the estate to be taken under it, as in default of appointment it involves the improbable construction that the testator intended the real estate to be appointed to any of the issue, their heirs and assigns, with the condition that they should hold so long as any of the issue of the donee should be in existence. If he did not intend this, then he did not mean an indefinite failure of issue, and the proper construction is that complainants take life estates, with powers of appointment to any of their issue living at their deaths, in fee, who, in default of appointment, take among them in fee, and if there be no issue living at the death of donee, then over: Smith on Ex. Dev. §§ 527, 530; Hockley v. Mawbey, 3 B. C. R. 82 (Perkins' Ed. 73, note a); Suddington v. Kime, 1 Ld. Raym. 203; Abbot et al. v. Jenkins, 10 S. & R. 298; Dunwoodie v. Reid, 3 S. & R. 470; Greenwood v. Rothwell, 5 Mann. & Gr. 628; 5 S. & R. 99; Findley v. Riddle, 3 Binn. 139.

II. The testator directs the defendants to convert the whole of his estate to realty, to keep the same sufficiently insured, receive the rents, and pay over to the complainants what they, the trustees, deem sufficient for support and education, until they are twenty-five; all of which cannot be done unless the legal estate is in them. There is a distinction between trusts to receive and pay over, and trusts to permit the cestui que trust to receive — the first are not executed: Symons v. Turner, Eq. Ca. Abr. 383; White v. Parker, 1 Bing. New Cases 573. In Rush v. Lewis, 21 St. Rep. 72, the trust was to receive and pay the income to the daughters not subject to the debts of any husband they might thereafter marry, and Black, C. J., held that if it had not been made the duty of the trustees to receive and pay, they would not have had the estate.

The direction that the receipts of the cestuis que trust alone shall be the only sufficient discharge, shows an intention to secure for their exclusive enjoyment the income.

The intention is a legal one; and to effectuate it, the trust will be protected: Fisher v. Taylor, 2 Rawle 33; Holdship v. Patterson, 7 Watts 551; Vaux v. Parke, 7 W. & S. 19; Ashurst v. Given, 5 W. & S. 328; Sylvester v. Wilson, 2 Term R. 444.

The opinion of the court was delivered, January 7th 1861, by STRONG, J.

If the estate devised for life to J. Alfred Kay, and the other complainants, be only equitable, while the remainder given to the issue of the bodies of each is legal, the prayer of the bill must be denied. There is, then, no ground for the application of the rule in Shelly's Case. The first question, therefore, presented by the record is whether the legal estate is vested in the defendants who are the trustees named in the will of the testator, or whether it has passed to the beneficial devisees. The will directs that the trustees shall invest the property given in real estate, in their own names, which has been done. It directs that the property shall be kept perpetually and sufficiently insured, and that, on the attainment of the age of twenty-five years by James Alfred Kay, the trustees shall pay to him, during his life, in quarterly instalments, the income of the said real estate purchased for his benefit; and it declares that his receipt, and his receipt alone, shall be their only sufficient discharge therefor. James Alfred Kay, one of the complainants, has attained the age of twenty-five. As to him, the discretion given to the defendants to allow to each of the complainants, from his or her income, such money for his or her support and education as they may think proper and expedient, and the direction to invest the surplus for his benefit, have expired. The duty of the trustees now, therefore, is to pay over, quarterly, the whole income, taking his receipt. Have they, then, any duty imposed upon them which requires that they should continue invested with the legal estate? If the case were to be decided according to the doctrine of the English courts, it cannot be doubted that they have. There the rule appears to be well established, that when there is a gift of real estate to trustee, with a direction to convey, or to pay the rents and profits to certain persons, or to receive the rents and apply them for the maintenance of an individual during his life, or to pay an annuity out of the rents during his life, the seisin or possession of the legal estate is requisite for the due performance of the duty imposed upon the trustees, and consequently that the persons to whom the use is subsequently given take only an equitable estate. Such interests are not held regarded as mere dry trusts, to be disregarded, and considered executed in the person to whom the beneficial interest is given. To sustain a dry trust there must have been some special lawful trust expressed, but not so where the trustee has active duties to perform. From the case of Lord Say and Seal v. Jones, 1 Eq. Ca. Ab. 383, to the present time, it has been held that there is a distinction between a devise to trustees to pay the rents, issues, and...