Freedley's Appeal

The opinion of the court was delivered, by Agnew, J. — John Freedley, the testator, directed the residue — 350 — of his estate to he sold and the money to he divided into twenty-five shares. “Nine of said shares (he proceeds) I give to my brother Jacob in trust for and to be divided amongst his nine children, in such manner and at such times as he thinks best.” The whole question here hangs upon the meaning of the words “ in trust for.” Unexplained by the context, and taken in their literal signification, a strict technical trust would exist, and the consequences flow from it, which were attributed to it in the court below. Much of the force of the reasoning to prove this a strict trust depends on the fact stated by the auditor that the testator was a gentleman of the bar and familiar with the use of legal terms. But if the will itself betrays a misuse of the most familiar terms, and a confusion of thought in its structure, we must reject the force of the argument, and cannot rely confidently upon his professional character for his use of the words mentioned. In the first item of his will Mr. Ereedley, referring to a bequest of $1000, says: “ This is to be paid to them not as a devise but a debt.” In the next sentence he calls the bequest a legacy. In the ninth item or section, referring again to pecuniary bequests, he says: “ so as to give the legacies here devised in full to the devisees.” In the second item he “bequeaths” his real estate, and in several places uses the terms devise and legacy and devisee and legatee as convertible terms, thus discovering a singular want of discrimination in a lawyer of the terms applicable to real and personal estate. He also evidences great confusion of thought. In the second item, after devising certain real estate to two nephews, he proceeds: “ In case either of said devisees shall die during my lifetime, leaving a child or children, then such child or children shall take the parents’ share, but in case either of said devisees shall be dead leaving no issue, then such devisee’s share shall go to the survivors as tenants in common.” Thus he would make a single survivor take as a plurality of persons by himself constituting a tenancy in common. It is evident there was confusion of thought, arising probably from some vague impression of the possible death of the survivor leaving issue. In the third item he gives an estate to his brother Henry for life, then a life estate to Henry’s daughter Harriet, with remainder in fee to her children as tenants in common. In the next sentence he not only authorizes Henry to sell the estate, which as a conversion merely is not inconsistent with the estates given to Harriet and her children, but he authorizes Henry to make such disposition of said lands, or any part of them, by will as he shall think best. Of course he had the power to do this, but it is so manifestly inconsistent with the entire disposition of the estate to Harriet and her children, we cannot help perceiving an unsteadiness of thought which goes far to diminish our confidence in the — 351 — accuracy and force of the language used in his bequest to Jacob for division among his children. His unsteadiness of expression is also very noticeable in the disposition of the other shares of the? residue following the nine bequeathed to Jacob. Thus: “ Five other shares I direct to be paid to my sister, Mary Davis, to be by her held for her own use, or paid out to her five children now living, as she shall think best.” “ Three other shares I direct to be paid to my sister, Betsey Prince, to be held by her for her own use, or paid out to Henry Prince, Samuel M. Prince, and Catharine B. Lewis, as she shall think best.’” “ The other seven shares I give to my sister, Susan Jacoby, to be by her held for her own use, or paid out to her seven children at such times and in such shares as she shall think best.” Now in these three clauses, the use, power of disposition, and objects were intended to be precisely similar, and yet are differently expressed. He denotes the objects of disposition in three ways:— Mary Davis’s five children, now living, Betsey Prince’s three by name, and Susan Jacoby’s seven children. Obviously, the “ five children now living” of Mary Davis, means precisely the same as Susan Jacoby’s “ seven children,” or else the expression is involved in obscurity. The “seven children” were certainly seven then living, and were therefore as much “ now living” as the five; otherwise what seven would they be, if Susan had then more than seven, or was expected to have others to make up the number, and' if so, might have more than seven ? Betsey Prince’s three children might have been named because she had others; but even that is of no consequence, for by taking the bequest to her own use, she could afterwards transmit her estate to others. Then as to the disposition of these bequests, Mary Davis and Betsey Prince could pay out to their children “ as they think lest,” while Susan Jacoby could pay out to hers “ at such times and in such shares as she shall think best.” It would be difficult for a lawyer equal to, or superior to John Freedley, to define clearly the difference in meaning between these forms of expression. One who can pay out to others as she thinks best, seems to have as much discretion as one who may pay out at such times and in such shares as she shall deem ■ best, especially if the power also exists to keep it all to herself. How then are these forms of expression, so singularly varied in language and yet evidently meaning the same thing, to be distinguished from the language used in Jacob Freedley’s case, to wit: “ To be divided amongst his nine children in such manner and at such times as he thinks lest.” It seems to be scarcely doubtful that as to the power of distribution among his children, the intention was to place Jacob Freedley on the same footing with his sisters, both as to time and shares. Looking at the broad discretion thus given to Jacob over the fund he has in his hand, it is not probable the testator intended to create a strict — 352 — technical trust by the words “in trust for,” but leaving the mere language of the will, is the intention to create a strict trust discoverable in its provisions ? Starting out with the opening declaration of the testator, that he was desirous of “ so dividing and disposing of his estate as would be most conducive to the happiness and welfare of those for whom he intended the same,” what were his intentions as to Jacob ? Jacob was his full brother, having a large family to provide for. There is no evidence of a want of fraternal feeling, or a lack of confidence in Jacob on the part of John, for he put the whole fund into Jacob’s hands without _security, and with large powers over it. There is no reason, therefore, to exclude Jacob from any benefit he could derive from the fund, and place him in the harsh relation of a strict technical trustee, liable not only for what he made upon it, but also for what he ought to have made. If he intended this straight and narrow duty, it is singular, with the knowledge claimed for him as a lawyer, he made no provision for the investment or management of the fund. He must have foreseen that this fund would lie in Jacob’s hands for years, while his children were growing up to an age when, in the language of the testator, “ it would be most conducive to their happiness and welfare” to have their shares. Hid he mean that during this long lapse of time Jacob should be the mere servant of his children, to be called to a rigid and strict account, without even the poor privilege of burying the talent for safety till the day of account ? There is nothing in the will or the circumstances to induce this belief; and, on the contrary, the current and analogy of his thought in either cases tend to a different belief. Thus, he appears to have been specially inclined to create life estates; for instance, he gives life estates to Henry, Harriet Wood, Matthias Holstein, and Emeline Detwiler, and to Mary Davis, Betsey Prince and Susan Jacoby, an equivalent, with an option of more. The provision itself for Jacob carries internal evidence adverse to a strict trust. If Jacob’s own benefit had no place in the mind of his brother, and if the precise thought of John was that Jacob should be a mere conduit-pipe to carry this share over to his children, it is singular that as a lawyer familiar with the necessity for bequests over, he made no provision for the death of any of Jacob’s children. In a class of nine children what more probable than that one or more might die without issue, and yet there is no provision for lapse, or for survivorship. One did die in the lifetime of the testator, and without issue. A lapse would carry it back into the residue. A death after the legacy vested would not carry that part to the survivors. These consequences are inconsistent with the strict trust and limited discretion contended for. When John Ereedley said Jacob should divide this share among his children in such manner as he thinks best, he did not mean in such mode. Manner here is not predicated of a payment, — 353 — but of the division. He intended that Jacob should so manage and divide the fund as would make it most conducive to the welfare and happiness of his children. And when he said at such times as he thinks best, he did not mean at the time when his children should choose to call him to an account, or at any particular time, or at one time, but he meant precisely what his confidence in Jacob proves, to wit: whenever and in such proportions as in his judgment would be most conducive to their interests. But this clause does not stand alone. At the close of the item disposing of all of the twenty-five shares, and by way of proviso upon all that preceded it, he adds: “If my brother Jacob or either of my said sisters should die during my lifetime, or before making any disposition of such shares so devised to them respectively, then such shares to be paid to said children in equal shares.” Now, if Jacob occupied the position of a mere trustee without any interest, and his nine children had vested legacies, needing no protection therefore in that aspect, why did this professional testator place him on a level with his sisters ? Rendering the clause single, how will it read? If my brother Jacob shall die before making any disposition of such share so devised to him, then such share to be paid to his children in equal shares. The clause states two things — that the share was bequeathed to him, and that he had the power of disposition; and it does another thing, it places him on the same platform with his sisters. What disposition was it they were to make? It was any disposition. It seems difScult to understand why he should thus put Jacob in a class of persons having a large power of disposition, unless it was in the mind of the testator that he had more than a merely strict and technical trust. It is difficult to account for the peculiar language of the clause itself, giving a large discretion in the dispotion of the fund without provision for lapse or survivorship, and without provision for investment, and to account for the structure of the whole item, including the proviso upon it, classing'Jacob with his sisters, unless we suppose it was in the mind of the testator that Jacob should have the benefit of the fund in his hands until the time would arrive when he should execute the trust or confidence reposed in him, by dividing the fund among his children. Of the time or times and manner of doing this Jacob was to judge, in the spirit of the opening declaration of the will. This benevolent intent of the testator is manifested in the next succeeding clause. He says: By the foregoing devises I have endeavored to make a fair and equitable distribution of my estate, and hope that none will attempt to disturb the same. Did John Freedley think it was a fair and equitable distribution, conducive to the welfare and happiness of Jacob, to create a strict trust without the slightest benefit to himself, one to continue for years, until his children should all come to an age proper to receive the money, 10 P. F. Smith — 23 — 354 — and to make him liable to render a strict account to them for every cent of interest lie bad made or ought to have made ? It seems to us the whole will negatives this presumption, and that the only difference he intended to make between Jacob and his sisters was that they might appropriate to themselves the principal or any part of it, while Jacob could only appropriate the interest, and should hold the principal in trust and confidence to divide it among his children in such shares and at such times as he should think it conducive to their interest to do so. We think the words “ in trust for,” when interpreted by the whole spirit and intention of the will, do not purport a strict technical trust, but a mere confidence that Jacob would in the end, at such times and manner as he thought it proper to do so, divide the capital of the sum among his children. As to the capital there is therefore a trust which would entitle his children if he was wasting or mismanaging the fund, to ask the aid of the court by compelling him to account for it, and to give security for its final distribution among them. As the petition of the complainant avers substantially mismanagement, want of security of the principal, and danger of its loss, it cannot be dismissed, but the case must go back to the Orphans’ Court to inquire into that fact, and make such decree as the facts of the case may warrant. The decree 'of the Orphans’ Court is therefore reversed, and a procedendo awarded; the costs to abide the final decree.