Pray's Appeals

• Decision Date: 01 January 1859
• Citation: 34 Pa. 100
• Parties: Pray's Appeals.
• Court: Pennsylvania Supreme Court

34 Pa. 100

Pray's Appeals.

Supreme Court of Pennsylvania.

APPEALS from the Orphans' Court of Philadelphia.^*

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G. Junkin, Jr., and F. C. Brewster, for the appellant, cited Story's Eq. § 1272; Knight v. Plymouth, 3 Atk. 480; Thompson v. Brown, 4 Johns. Ch. 619; Osgood v. Franklin, 2 Id. 27-8; Hill on Trustees 495; Johnson's Appeal, 12 S. & R. 325; Konigmacher's Appeal, 1 Penn. R. 207; Dillebaugh's Estate, 4 Watts 177; Nyce's Estate, 5 W. & S. 254; Twaddell's Appeal, 5 Barr 17; Rush's Estate, 2 Jones 375; Barton's Estate, 2 Pars. 28; Chew v. Chew, 4 Casey 17; 1 Sugden on Powers 341; 2 Id. 511; Stanley's Appeal, 8 Barr 432; Morris v. Wallace, 3 Id. 319; McCahan's Appeal, 7 Id. 56; Hemphill's Appeal, 6 Harris 305; Worrell's Appeal, 11 Id. 44; Angue's Estate, 14 Leg. Int. 300.

Clay, for A. M. Hallett, and Parsons, for M. A. Spicer, cited Hemphill's Appeal, 6 Harris 303; Worrell's Appeal, 11 Id. 44; Angue's Estate, 14 Leg. Int. 300; Langston v. Ollivant, Cooper 33; Booth v. Booth, 1 Beaver 125; Trafford v. Boehm, 3 Atk. 444; Rider v. Bickerton, 3 Swan 80, note; Wilkes v. Steward, Cooper 6; De Manneville v. Crompton, 1 V. & B. 359; Hill on Trustees 369, 370; Westover v. Chapman, 1 Coll. 177; Hockley v. Bantock, 1 Russell 141; Watts v. Girdlestone, 6 Beaver 188; Commonwealth v. McAlister, 4 Casey 480; 6 Id. 536; Chew v. Chew, 4 Id. 17; Pocock v. Reddington, 5 Ves. 794; Milsington v. Earl Mulgrave, 3 Mad. 491; Hill on Trustees 724-5; Roseburgh v. Sterling, 3 Casey 292; Miltenberger v. Croyle, Id. 170; Stoops v. Blackford, Id. 213; Lancaster v. Dolan, 1 Rawle 231.

The opinion of the court was delivered by READ, J.

By his will the testator authorized and empowered his executor, who was his eldest son, to sell all his real and personal estate, and to apply the proceeds, or so much thereof as shall be necessary to the discharge of all lawful demands, against his estate, and to invest and re-invest in any other property real or personal, that he may see fit, any surplus which may remain, or so much thereof as may be necessary to carry into effect the trust thereinafter created, or any other provision or requirement of his will. The residue of his estate he disposed of to his eight children and to their issue, born and to be born; and as to six eighth parts of it he provided as follows: —

"4. And whereas my daughter Catharine is married to George G. Lower, and my daughter Ann M. to James Hallett, and my daughter Maria to William Cuthbert, and my daughter Mary Ann to George F. Spicer, and it is my will and intention that all the shares of my estate real, personal, and mixed, now about to be devised by me, shall be enjoyed by them to their own use, free from the control, and without let or molestation from their present husbands, or any future husband that either of my said daughters may have and take, and without being made liable for any debt or debts which they, or either of them, may have contracted, or may hereafter contract. And whereas my son Charles has been unfortunate in business, and my son Edward is deaf and dumb, and it being also my will and intention that their shares of my estate real, personal, and mixed, now about to be devised by me, shall be enjoyed by them to their own use, and without being made liable for any debt or debts already contracted by them, or either of them, or which they, or either of them, may hereafter contract, and without being liable to be disposed of by way of sale, assignment, or otherwise, by them, or either of them. Now I hereby give and bequeath all and singular the remaining six-eighths part of all my estate, real, personal, and mixed, to my son Michael, to have and to hold the same to him, his heirs, executors, administrators and assigns, to and for his proper use and behoof for ever, upon this special trust and confidence, nevertheless, viz., to have and exercise all the power and control over the same for the purpose of this trust, as are given and specified in the second item of this my will for the management and settlement of my estate, and also for the avoidance of either or all of the said trusts, either in whole or in part, as hereinafter specially provided for, and to pay over, at such times as the same may safely and reasonably be ascertained, all the rents, issues, and profits thereof which shall accrue, and which may remain after the payment of the taxes, repairs and all other necessary and proper charges and expenses, unto my said daughters, Catharine, Ann M., Maria, and Mary Ann, and my sons, Charles and Edward, in equal proportions of one-sixth part each, and the receipts in writing of my said daughters, whether they be married or sole, shall be a sufficient warrant in the premises to all concerned." Then follows a provision for deducting from Charles's portion his indebtedness to the testator, and then the will proceeds: "and in case of the death of either of my said daughters, Catharine, Ann M., Maria, and Mary Ann, or either of my said sons, Charles and Edward, leaving issue, the trusts created in their behalf respectively, as hereinbefore mentioned, still remaining in whole or in part, unavoided as hereinafter provided for, the trustee shall be seised in the premises to the use of such issue, and in the same proportions, if more than one child, as such issue would have taken under the intestate laws of Pennsylvania, had either of my said daughters died, being of full age, a widow, or had either of my said sons, Charles or Edward, died leaving such issue, and the property had been vested in him, her, or them."

Then follows a provision for an avoidance, in whole or in part, of either of the said trusts by the trustee, upon the application in writing to him by either of the said cestuis que trust.

It is clear, therefore, that these shares were trust property belonging to his children for life, and after their death to their issue, and that the powers given to the trustee, however large, were to be exercised solely for the benefit and advantage of the cestuis que trust. The testator undoubtedly intended to provide for the regular support of his daughters and his insolvent and deaf and dumb sons, by securing the payment over to them during their lives of the net income of their shares.

It would seem, that the whole estate, which was principally real, was sold by the trustee, and it then became his express duty by the will to invest the shares of the cestuis que trust in some productive property, in order to fulfil the first intention of the testator, which was the maintenance of his married daughters and his helpless sons. The large powers vested in their brother, the trustee, were therefore to be exercised for this object, taking care, at the same time, that the capital, in which their issue had a deep interest, should neither be impaired nor placed at hazard. The general rule is well settled, that where trust-money cannot be applied either immediately, or by a short day, to the purposes of the trust, it is the duty of the trustee to make the fund productive to the cestuis que trust by the investment of it on some proper security. Our Act of Assembly has provided for just such a case, where the principal or capital is to remain for a time in his possession or under his control, and the interest, profits, or income thereof are to be paid away, by authorizing investments to be made in certain public stocks, or on real securities, which, when made under an order of the Orphans' Court, exempt the trustee from all liability of loss for the same.

In this will no specific securities are mentioned, and therefore such investments as the court would authorize would not be contrary to...