Earp's Appeal

The opinion of the court was delivered, May 11th 1874, by Agnew, C. J. Since the return to the former doctrine of trusts, in Barnett’s Appeal, 10 Wright 392, it has been our endeavor to maintain trusts upon their true foundation, as a means of preserving the dominion of the donor over his own property for his reasonable purposes, unless where a clear public policy strikes down the trust as no longer useful or as an unnecessary clog upon the title. There is no instance since Barnett’s Appeal, to my knowledge, in which this line of decision has been departed from. Yarnáll’s Appeal and Ogden’s Appeal, relied upon by the appellants as changing the current, are not exceptions, as will be shown presently. Many special trusts, and some of them for persons sui juris, have since been upheld, a few of which are referred to in Ogden’s Appeal, 20 P. F. Smith 507. Why should the law be inimical to those special or active trusts [123] which enable a testator or other donor to provide for the necessities of a family, and the changes made by death, misfortune or accident, or to enable him to preserve his'property for the objects of his bounty, when not contrary to any well defined public policy ? The right of property is one protected by the bill of rights; and the right to regulate its use within reasonable limits, is a just corollary from the right itself. Trusts supply the means of carrying out family arrangements, and of breaking the force of the blow death deals against the head. They furnish a protection against improvidence, indiscretion, inexperience, imbecility, misfortune, and even vice, upholding the wishes of parents and friends, and inspiring even the dying with comfort. They are contrary to no principle of justice, wisdom or morality, and therefore demand our confidence and support in proper cases. Hence, when a special trust within these limits is clearly raised by the imposition of active duties on the trustee, or for purposes making it necessary to preserve the estate intended to be given, the will of the donor gives eflicaey to the trust. Voluntas donatoris in cTiarta sui manifesté expressa observanda. The trust declared by Robert Earp in his will, is an active special trust, which must be maintained in order to give effect to his clear and well defined purpose in relation to his family. By well chosen words he invested all the residue and remainder of his estate in his executors, their heirs, executors, administrators and assigns, for their only proper use; in trust nevertheless, to wit: “ To collect the rents, income and interest * * * and to pay one equal fourth part thereof unto each of my other three children, viz.: Hannah Earp, Annie Earp, and George Earp, Jr., during their natural lives respectively, and upon the decease of either of my said children, then in trust, as respects one equal fourth part of the principal of my said residuary estate, to grant, convey, assign and transfer the same unto such person or persons, as such child may direct or appoint by any last will or writing in the nature of a last will, to be by him or her executed in the presence of two or more credible witnesses * * * and in case of the death of either of my said children, without making any such appointment, then in trust to grant, convey and assign one equal fourth part of said principal of my residuary estate unto such person or persons as by the laws of the Commonwealth of Pennsylvania, would have been entitled to the same, if the deceased child had been legally seised of the said premises in his or her own right, and died intestate.” In this will there are four things to be noticed, distinguishing it clearly from Yarnall’s Appeal and Ogden’s Appeal. The corpus of the estate is fully and distinctly invested in the trustees, and put under their control. The bequests to the three children, Hannah, Annie and George, are only of the income. Their estates in the income are only for life, and without regard to coverture. [124] The principal is devised and bequeathed to the persons who would be entitled to it under the intestate law. Here is plainly an active operative trust, following a manifest intention essential to carry it into effect, by holding the corpus of the property itself, in the hands of the trustee, during the lives of the testator’s own children, irrespective of any purpose in regard to coverture, to enable them to receive and apply the income only to these children, and then to carry over the principal or corpus to their issue at their deaths. Without maintaining the trust, this plain and lawful intent cannot be carried into execution. In Yarnall’s Appeal, 20 P. F. Smith 386, the devise and bequest of Mr. Ellis was, “ in trust for the only proper benefit, use and behalf of all my children that may be living at the time of my decease, and the lawful issue of such of them as may then be deceased, in equal parts and shares as hereinafter directed and set forth.” Thus, the trust was of the estate itself and not of the income merely, and not for life, but in language that would .carry a fee under Wills Act of 1833, where no contrary intent appears. Eollowing this, was a direction to apply the income of the sons’ shares to their use during minority, and to pay the shares themselves to the sons at majority. Then came the direction as to the shares of the daughters, viz.: “ And the parts and shares of my daughters who may then be living at the time of my decease. I direct my said trustee to hold in trust, to pay the interest and income thereof to my said daughters during their natural lives, free from the debts, control or engagements of any husband they may have or take." This was followed by a power of appointment by the daughters by will, and on failure to appoint to convey their shares to those who would be entitled to take from each under the intestate law. The trusts for sons and daughters were alike of the corpus of the estate, the former being disabled from receiving it only during minority, and the latter being disabled for life manifestly in view of coverture only. Hence, we held as to the daughters, that the manifest'intent being to invest them with the whole estate, and the disability being in view of a coverture which never took place, the only object of the trust having ceased, the trust fell upon well recognised principles as to trusts for coverture. The question on the will was really one of interpretation in order to reach the intent of the testatrix as to the estate she intended to vest in her daughters, and the purpose of the trust. A trust for coverture is one of the well settled instances in the doctrine of special trusts, where the trust falls when no marriage is in immediate contemplation, or after the coverture has ended by the death of the husband, the doctrine of this state being that the trust does not revive by a second marriage: Megargee v. Naglee, 14 P. F. Smith 216, and cases cited; Wells v. McCall, Id. 207 ; Freyvogle v. Hughes, 6 P. F. Smith 228; Koeifig’s Appeal, 7 P. F. [125] Smith 352. Perhaps a reason for the fall of this kind of trust is, that the donor having expressed coverture as its purpose, no other intent is presumed. Expressio unius est exelusio alterius. Ogden’s Appeal, 20 P. F. Smith 501, was a case precisely of the same 'nature. Our greatest difficulty there was in the interpretation of the will in order to discover the true intention of the testator. That being ascertained to be similar to the intent in Mrs. Ellis’s will, viz., to confer the entire corpus of the estate upon Mrs. Ogden, and create a trust for coverture only, the same conclusion was reached as in Yarnall’s Appeal. The opening sentence of the opinion is a key to the case, viz. : “ If the trust for Mrs. Harriet V. Ogden, under the will of her father, Cadwallader Evans, be active, as decided by the learned judge of the Common Pleas, his decree was right. • This, therefore, is the, real question.” We thought, the whole estate being intended to vest in her, and the trust intended for coverture only, and no marriage being in contemplation, the trust was not active, and we reversed the decision of the court below. That this court meant -no attack upon the doctrine of active or operative trusts, the whole of the first paragraph of the opinion distinctly shows. An examination of the will, and of the interpretation of it in the opinion, will prove that Mr. Cadwallader Evans’s will has no likeness to that of Mr. Earp; and that nothing in the opinion countenances a position that would break down the trust in this ease. It is proper toyemark that the decision upon one will rarely ever forms a precedent for a decision upon another. Even the same words in one are often interpreted differently in another. Instances of these various readings will be found in Yarnall’s Appeal, 20 P. F. Smith 341. The reason is, wills being interpreted by the whole instrument, the intentions of testators in the use of the same expression, are discovered often to be as various as their own individuality. Hence, that which may appear to be contrariety of decision, is simply diversity in the testator’s intention. The decree of the Court of Nisi Prius is affirmed with costs, and the appeal dismissed.