Leer v. Leer
| Decision Date | 04 May 1908 |
| Docket Number | 65 |
| Citation | 221 Pa. 195,70 A. 716 |
| Parties | Van Leer v. Van Leer |
| Court | Pennsylvania Supreme Court |
Argued March 24, 1908
Appeal, No. 65, Jan. T., 1908, by John P. Van Leer, from decree of C.P. No. 4, Phila. Co., June T., 1904, No. 3,388 dismissing exceptions to master's report in case of Edward Shippen Van Leer v. George R. Van Leer, Bella Van Leer, Joseph W. Van Leer, Jr., May Van Leer, John P. Van Leer (appellant), and Elizabeth N. Van Leer, his Wife, Helen Van Leer, Arabella Van Leer and George R. Van Leer, Surviving Executor and Trustee under the Will of Joseph W. Van Leer deceased. Affirmed.
Bill in equity for partition.
From the record it appeared that the bill was filed by one of the seven children of the testator, praying for the partition of the real estate of the testator. The averment of the bill, so far as material to the present controversy, was that each of six of the testator's children, including the complainant, was entitled to an undivided one-seventh share of two-thirds of the testator's real estate, in fee; and that a like share of a remaining child of the testator, John P. Van Leer, the appellant, was vested in George R. Van Leer, surviving executor and trustee under the will of the testator and codicil thereto, in trust for the said John P. Van Leer, during his life.
No answer was filed to the bill, and a decree pro confesso was entered, directing partition to be made, and referring the proceedings, "by agreement of the parties," to a master.
Subsequently, under order of the court, the master exposed the real estate to public sale, and realized therefrom the net sum of $38,980, one-third of which he awarded in trust for testator's widow during her life, and the remaining two-thirds he divided into seven parts, six of which he distributed among six of the testator's children, reserving for further consideration and report, upon request of all the parties in interest, the contention of testator's seventh child, John P. Van Leer, that the trust created as to him by the testator's codicil to his will was a special trust intended solely to bar his then wife, Maud D. Van Leer, from any participation in his share, and that he, being now divorced from Maud D. Van Leer, was entitled to receive his distributive one-seventh share or $3,712.38, free and discharged of the trust.
All the codistributees filed with the master a written declaration that they were satisfied that the testator's purpose in creating the trust as to John P. Van Leer had been accomplished by the divorce of the latter and his former wife, Maud D. Van Leer, and setting forth their reasons in the nature of a case stated. George R. Van Leer signed this instrument individually, but "not as executor or trustee."
The master awarded the distributive share of John P. Van Leer to George R. Van Leer, surviving executor and trustee under the will and codicil of the testator, and dismissed exceptions filed to his report by John P. Van Leer.
On appeal, the lower court, without opinion filed, dismissed the exceptions and confirmed the master's report.
Error assigned was the decree of the court.
We concur in the conclusion reached by the learned master and approved by the court below, and, therefore, the decree is affirmed.
Howard Benton Lewis, for appellant. -- The purpose of the testator, in placing in trust by codicil the fee previously given the appellant by will, was to exclude the woman whom appellant had married, and from whom he had separated, from the exercise of any marital rights against his estate: Stambaugh's Est., 135 Pa. 585; Postlethwaite's App., 68 Pa. 477; Tyson's Est., 191 Pa. 218; Hoge v. Hoge, 1 S. & R. 144; Decker v. Directors of the Poor, 120 Pa. 272; Board of Charities, etc., v. Lockard, 198 Pa. 572; Thackara v. Mintzer, 100 Pa. 151; Lewellyn v. Levy, 163 Pa. 647.
The divorce of the appellant from his former wife accomplished the purpose of the codicil; the trust therein created is executed, and, the legal and equitable title coalescing in the appellant, he is entitled to the full control of what, before the trust was created, was absolutely his: Koenig's App., 57 Pa. 352; Lee's Est., 207 Pa. 218; Bush's App., 33 Pa. 85; Steacy v. Rice, 27 Pa. 75; Smith v. Starr, 3 Whart. 62; Ogden's App., 70 Pa. 501.
No paper-book or argument for appellee.
Before MITCHELL, C.J., BROWN, MESTREZAT, POTTER and ELKIN, JJ.
This is an appeal by John P. Van Leer from the decree of the court of common pleas No. 4, of Philadelphia county, in refusing to award him in fee the undivided one-seventh of two-thirds of the real estate of his deceased father. It would certainly give us pleasure to grant the desire of the appellant's mother and brothers and sisters and decree the property in question to the appellant free and discharged of the trust. Our decree, however, cannot be based upon our pleasure but upon the interpretation of the will of the testator. We are clear that the learned master interpreted correctly the codicil to the testator's will, and we agree with his conclusion "that the trust is not a special trust but an active spendthrift trust, and that the legal fee is not in John."
There can be no doubt that the testator by his will intended to give his son John the undivided one-seventh of the two-thirds of his real estate in fee. His will, executed March 28, 1894 so declared. But it is equally clear that for reasons satisfactory to himself he had changed his mind and his intention when he executed the codicil to his will on May 22, 1896. That codicil does not affect the interests of any of the other six children who had been given, by the will, an equal interest in the testator's estate. The codicil dealt exclusively with John P. Van Leer's interest or share, and it plainly and explicitly disposed of that share. It is contended by John that in executing the codicil the sole purpose of the testator was to prevent the woman whom John had married, and from whom he had separated, deriving any benefit or advantage from the income or principal of the estate; that the object was to create a special trust for that purpose, and that the divorce of the appellant from his wife executed the trust and accomplished the object of the testator. The learned master, however, as we have seen, did not agree with that construction of the codicil, but held that the testator intended to and did create an active spendthrift trust of the estate which had been given...
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