Pleasonton's Appeal

Chief Justice Sharswood delivered the opinion of the Court, January 30th 1882. We have no doubt that under the will of Joseph Dugan the period of final partition and distribution of his estate was postponed until the death of Gen. Pleasonton, and was not to take place upon the arrival of the youngest child of his niece, Mrs. Pleasonton, at full age. The words of the clause providing for such partition and distribution are distinct, and unsusceptible of any other construction. “ After the death of my sister, Ann Dugan, and of my niece, Caroline Pleasonton, and of my niece’s husband, Augustus James Pleasonton, and so soon as the youngest surviving child of my said niece, Caroline, shall attain twenty-one years of age (and not before),” then to make distribution and partition “ to and among the then surviving children of my said niece Caroline and the children or lawful issue of any child of my said niece.” The interest of Augustus Pleasonton, one of these children, of whose estate the appellant is administratrix, was contingent upon his surviving Gen. Pleasonton. His children or issue take upon the same contingency. There is no clause or provision in the will, from which it can be' inferred that it was intended that the interest in the meantime should vest. The annuities to these children were for life. It was shown in Provenchere’s Appeal, 17 P. F. Smith 463, that, as was the case there, where interest, either by way of maintenance or otherwise, is given to the legatee in the meantime, the legacy, notwithstanding the gift itself be postponed, vests on the death of the testator, yet there is a recognized exception in England, that when the' gift of interest or maintenance is distinct, and the direction is to pay or transfer the principal sum at the specified age or upon' the condition named, the legacy is contingent; and Chief Justice Gibson, in King v. King, 1 W. & S. 207, considered a bequest of dividends as a clear exception to the general rule. An annuity for the life of the legatee is a still clearer exception. The learned counsel for the appellant with all his research was able to produce no case which would rule that anything contained in this will would show that the legacy here was vested, either on the death of the testator or the coming of age of the youngest of the children of Caroline Pleasonton. Hntil it was ascertained by the death of Gen. Pleasonton, who were the survivors then living, it could not be known to whom it would ultimately [369] belong, and of course it was contingent. It may be that if the testator had thought of what has occurred, he would have made a suitable provision for the maintenance and education of the children or issue of a child of his niece dying before the period of distribution. But he has not done so, and we have no power to supply the gap by making a will for him. It follows, necessarily, that the appellant has no standing in this court, and we might dismiss this appeal at once, on that ground, without any opinion upon the question of surcharge. But we think it better to consider that question without waiting for the substitution of the guardian of the minor children of Augustus Pleasonton. An amendment to that end would be allowed, of course, even at this stage of the proceedings. Augustus Pleasonton in his lifetime filed exceptions to the confirmation of the adjudication of the auditing judge on this ground, and it does not appear by the record that they were withdrawn, though it is stated in the opinion on the final decree that they were abandoned on the oral argument. The infants are not bound by such an abandonment. Ve think it most advisable to dispose of the whole case.' The mode in which the surviving trustee managed the estate was certainly very peculiar, and it seems that if the ordinary mode of managing the estate had been pursued, a large amount would have been added to the accumulations. Had ah application been made to remove him as mismanaging the estate, and that were the question now before us, there would be strong reason for dismissing him. But the question of surcharge is different. It is plain that the trustee acted on an honest though perhaps mistaken opinion, lie faithfully accounts for every dollar he has received. Having a very large number of houses belonging to the estate under his care, he thought it the wisest policy to keep up the rents at a high figure, even though the result might be that many of the houses would be vacant for a greater or less period, that the gain on the whole would exceed the loss on the few. Some such policy has often been pursued by large ship-owners, like Mr. Ciirard, who very rarely, as it is said, insured his vessels, as he saved money by being his own insurer. It is clear that such a principle could never have even an appearance of reason unless where a trust estate was composed of a very large number of houses, as was this case. A trustee can never be surcharged for a loss arising from a mere error of judgment, and for no willful default. The trustee appears to have acted throughout under the advice of counsel, and his first and second account having been referred to Mr. McCall, as auditor, he reported that the increase which had taken place in the income of the estate while no doubt largely due to the rise in value of real estate [370] “ was also in no small degree to be attributed to the just and judicious management of the trustees.” •Decree affirmed and appeal dismissed, the costs of this appeal to be paid by the estate, including the cost of the appellant’s paper book and one hundred dollars to her counsel.