Wallace v. Denig

Opinion by Mr. Chief Justice Paxson, This was an action of ejectment in the court below in which James Wallace, the plaintiff and appellee, claims title to an undivided one half of a farm in Braddock township, during his life, as father of his daughter, Maggie, who died in 1851. Barnett Gilleland executed his will March 13,1844, and died on and about November 1, 1845. By the sixth paragraph of his will the testator provides: “ To my son, William, I hereby give and bequeath in special trust and confidence as trustee of my daughter, Lydia Wallace, the second choice (after my son, James) of the above three allotments in Wilkins township; that he will permit the said daughter, Lydia Wallace, to occupy and enjoy the same for h¿r separate use, not to be under the control or subject to the debts of her husband, but to enjoy all the rents, issues and profits during her natural life; and at her death to descend to the issue of her body; but if the said Lydia should die leaving no issue, then the said estate to revert back to and be a part of my residuary estate, the same to be in full of my said daughter, (Lydia’s) part, except the bequest hereinafter made out of my •residuary estate.” The fourteenth paragraph of the will further provides: “ It is my desire and will that any time my said son, William, shall ■think right, and proper and prudent, he may surrender any of the foregoing trusts ; he may surrender and assign the same to Nancy Guthrie, Lydia Wallace, or Euphemia Marshall, or either or all of the said trusts, but it is my wish that he would not •do so unless fully satisfied of the propriety of that course.” The testator’s daughter, Lydia, was married to the plaintiff ■in 1842. At the time of the testator’s death Lydia had no issue or children. In 1847, a son, James S. Wallace, was born, who survived his mother, and died, it was alleged, in 1887. In T849, a daughter, Maggie, was born, and she died in 1851. It is as heir of Maggie that the plaintiff claims, as before stated, ■the one half of the farm in controversy as tenant for life. This same clause of Barnett Gilleland’s will was before this court in Peoples’ Savings Bank v. Denig, 131 Pa. 241. The [256] plaintiff there claimed the same property as tenant by the curtesy which he now claims as father of his deceased minor child. The fact that he failed in that contention, does not necessarily show that he is wrong in this. If he mistook his title then it does not bar him from asserting it now. It is conceded that the will in question did not give an estate tail to his daughter. It was said in the opinion of the court in the case above cited: “ It is hardly probable, though this is not important, in the view we take of the case, that he (the testator) meant to create an estate tail, however much the words used would seem to indicate it, for he evidently intended no benefit to his daughter’s husband, and an estate tail would make him a tenant by the curtesy upon the death of his wife.” We are still of opinion that the testator did not intend to give his daughter’s husband any benefit under his will, and while we do not assert the general proposition that the husband could not, under any circumstances, be his daughter’s heir, we feel quite safe in saying the testator did not intend that his son-in-law should take any part of his estate in case the said Lydia should die without leaving issue living at the time of her death. On the contrary, he expressly provides that in such case the said estate so devised to Lydia should revert back and be a part of his residuary estate. The third specification presents the point which controls this case. It alleges that the court below erred in refusing to affirm defendant’s fifth point. The point was as follows: “ That under the will of said Barnett Gilleland, the failure of issue therein referred to is a definite failure of issue, and Maggie, who died in 1851, dying before Lydia, took no interest therein.” In 131 Pa., before referred to, we held that the legal title to the estate devised to Lydia was placed by the will in the hands of William Gilleland, as trustee, and that it was an active trust, under the authority of Barnett’s Appeal, 16 Pa. 392. That it was something more than a trust to protect the separate use, is apparent from the fact, that it is provided in the fourteenth paragraph of the will, before cited, that at any time the said trustee shall think right, proper and prudent he may surrender any of the foregoing trusts; “ he may surrender and assign the same to Nancy Guthrie, Lydia Wallace, Euphemia Marshall, or either or all said trusts, but it is my wish that he would not do so unless fully satisfied of the propriety of that. course.” [257] This means, not merely that he had the power to surrender to Lydia Wallace a mere life estate, but that he might end and execute the entire trust by conveying to each of the testator’s daughters the estate in fee, clear and discharged of the trust. It was therefore necessary for the trust to continue, and the legal title remain in the trustee up to the very moment of Lydia Wallace’s death in order to carry out the will of the testator and execute the trust. It was conceded that the whole legal title vested in the trustee on the death of the testator. The plaintiff contends, however, that upon the birth of James S. Wallace the legal title left the trustee and became vested in the said James S. Wallace ; that he held the whole title to a vested remainder, until Margaret was born in 1849, when the title of James S. opened to let in the after-born Margaret; that he thereupon became the owner of the one half of the vested remainder, and from thenceforward to May, 1880, William Gilleland was only trustee to support the separate use trust of Lydia Wallace, and that, therefore, when Margaret died in 1851 her title went back to her brother, James S., subject to the trust and a life estate in her father which took effect in possession, or ought to have done so May 1,1880, on the death of the said Lydia Wallace. We cannot sustain this contention. The true interpretation of this will is to be gathered from within its four corners. An examination of it plainly shows a manifest intention on the part of the testator to clothe the trustee with the title so that he could execute the trusts of the will in accordance with the desire of the testator. The trustee had the power, as before observed, to surrender the entire trust, and by this one act to put an end to the interest of any one else. It is not to the purpose that the trustee never exercised this power. The will speaks from the death of the testator, and the power remained in the trustee up to the death of Lydia Wallace. The whole legal title was put in the trustee to preserve the estate for Lydia, and for such issue as she may leave surviving her at the time of her death, and in default of issue living at that time, then to carry it back to the testator’s residuary estate. A careful consideration of the whole will leads us to the conclusion that the testator contemplated a definite failure of issue. It will be observed that there is no devise over, but Lydia’s share, [258] upon the happening of the contingency referred to, is to revert' to and become a part of the residuary estate of the testator. In Miller’s Estate, 145 Pa. 561, it was said by our Brother Sterrett : “ But the courts have seized with avidity on any circumstance, however trivial, denoting an intention to fix the contingency at the time of the death: Seibert v. Butz, 9 W. 490. And accordingly, in Snyder’s Ap., 95 Pa. 174, where the bequest was to H., and, if he should 'at any time die without issue, I then give and bequeath ’ over to all testator’s children, it was held that the use of the words ‘ at any time ’ and 'then’ imported a definite failure. So, when the time at which the devise over is to take effect is expressly or impliedly limited to a particular period within a life or lives in being and twenty-one years after, or if he die without, leaving issue behind him, or leaving issue at the time of his decease, or if the devise over be of a life estate, which implies necessarily that such devisee may outlive the first estate, the testator has been considered as meaning a failure of issue within a fixed period, and not an indefinite failure: Eichelberger v. Barnitz, supra.” We do not think it necessary to discuss the numerous cases cited by the learned counsel for the appellee. This belongs to a class of cases where one case seldom rules another, for the reason that each will must be interpreted by itself, and does not depend to any great extent on prior interpretations of other wills. The specifications of error are sustained. ■ Judgment reversed.