McKee's Appeal

Mr. Justice Gordon delivered the opinion of the court, January 3d 1881. Frederick McKee died on the 21st of March 1865, leaving to survive him a widow and two children, one of whom is the petitioner. By his will he devised his mansion house to his wife for life, and also bequeathed to her, for a like period, an annuity of $2000. He then made the following direction: “ And upon her decease I will and bequeath said, house, as also all the rest of my worldly estate, to my children in equal shares, and in default of children or lineal heirs of my body, at the time of her decease, I will and bequeath all my worldly estate to my brothers and sisters in equal shares.” In this we have a precedent, estate so limited as to determine on an event which must certainly happen, that is, the death of the Widow, and the remainder so limited to ascertained persons in esse, Frederick and Melissa McKee, that the preceding estate may determine'before the estate limited in remainder. It follows that this is a vested remainder — an estate vested in prcesenti, but enjoyable in futuro ; that is, upon the mother’s death. The corpus of the estate is thus easily disposed of, for of that the testator determined that it should not go to his children until the death of his widow. But since his death there have been large accumulations arising from rents, issues and profits; accumulations which exceed the original estate, and the necessities of the trust, and the serious question is, what disposition shall be made of them ? Were we allowed to dispose of the matter, as we may suppose the testator would have disposed of it, had he known the facts as they now exist, we would say, without hesitation, these accumulations shall go to his children, for so he would have directed. But as it is obvious that he did not anticipate an increase so large to his estate after his decease, so it is just as obvious that he entertained no intention concerning it. Hence, of such intention we can predicate nothing. On the other hand, were it not for the eighth section of the Act of 18th April 1853, the question would not be difficult of solution ; for, before that act, accumulations as necessarily and naturally formed part of the original estate as vegetable accretions form part of the growing plant. In such case, as the children must wait for the possession of the corpus of the estate until the time fixed for the expiration of the precedent trust, so must they wait for the accretions which by natural growth form part of the corpus. But the Act of 1853 has altered this, and made such accumulations unlawful and void, unless, with relation to them, its terms and conditions are strictly followed. If, in the present case, we compare the provisions of the will with the terms of the act, we will find that not only were the latter not complied with, but the testator, as we have already said, not having any such accumulations in view, never intended to comply with them. The extreme period allowed for accumultions by the [285] act is t-wenty-one years, with the additional allowance of the ordinary time for gestation. Here the time is indefinite, it may be much more than twenty-one years, for it depends upon the life of Mrs. McKee. Again, in Washington’s Estate, 25 P. F. Smith 102, it was held that the statute permits accumulations in favor of one class of persons only, who are to be possessed of two qualifications; they must he minors; they must also be such persons who will be entitled to take the rents and profits from which the accumulations arise, when the gift or grant goes into effect, though at that time they have passed their minority. Under the operation of the will before us there is no direction in favor of any person or persons. On the other hand, if accumulation is allowed at all, it must be allowed to swell the general estate until the death of Mrs. McKee, when, as part of the corpus, it must go to whomsoever at that time may be entitled. No ingenuity can reconcile a provision of this kind with the statute and it must' therefore fall. Had we to deal merely with time, the act itself would settle any difficulty arising from that matter, for it avoids only the excess, but where the effect of the provision is solely to swell the bulk of the estate, it is so diametrically opposed to the intent and spirit of the statute that it cannot be sustained. Decree affirmed