McAleer's Appeal

Mr. Justice Trunkey delivered the opinion of the court, November 21st 1881. By deeds executed January 27th 1866, the naked legal title to the land was vested in Daniel McAleer, in trust that his wife, Mary Ann, should have the rents, issues and profits during her life, unless in case of her widowhood she should marry again, and, after her decease, or such marriage, their children shall have the rents and profits during their minority, and on their arrival at the age of twenty-one years to them and their heirs. Power was given to the trastee to sell and convey the whole or any part of the land, at any time, and for such prices as he should deem best for the interest of his children. McAleer had previously owned the land, and it is admitted that he was not indebted or contemplating liabilities so as to make the deed void as to creditors. It is conceded that he had the right to create the trust in favor of his wife and children, and himself be the trustee. He mortgaged the premises, and he could have done this only by virtue of the power contained in the trust deed. The fund in controversy arises from sale of the mortgaged premises, and the appellee claims that in reality McAleer owned the land at and before the time of the sale. McAleer was a mere trustee, without interest in the premises, and had no power other than to sell. He made an absolute gift of the land to his wife and children. In equity the entire estate was vested in the children of “ said Daniel McAleer and Mary Ann McAleer, begotten,” subject to the use of their mother during her life or widowhood. We are unable to adopt the view of the learned auditor, to wit: “ In case she survived her husband and died unmarried, there is no provision in the deed for the children, and the estate would then revert to Daniel McAleer’s heirs.” This is too strict a reading of the deed, avoiding its plain intent and the clear meaning of the language used, namely, that the children shall take the use immediately after their mother’s death, or before, should she become a widow and marry. Had McAleer’s wife died before him, and the power not exercised, at once they would have come into the enjoyment and use of their estate, and so will they if the widow mar [143] ries, by the express terms of the deed; the necessary implication is, that they shall have it if the widow dies unmarried. The power having been exercised, the proceeds of the land belong to the same persons, subject to the same uses, as did the land itself. The interest, or use, of the money belongs to them who were entitled to the rents, or use, of the land, and the omission to express in the deed that in ease of sale, the same persons should receive the interest of the money, who were entitled to the rents of the land, will not defeat the purposes of the trust. Conversion gave the trustee no interest, in the money, no power of appointment, no right of disposition for his own benefit, and will not deprive the owners of their property. Decree reversed, and it is now considered and decreed that the money in court, less costs of audit, be paid to Mary Ann McAleer, trustee. Costs of appeal to be paid by the appellee, J. C. Bindley.