Schwartz's Estate

Opinion by Mr. Justice Fell, We agree with the learned judge of the orphans’ court that the will of Levi Schwartz conferred upon his widow, the petitioner in this ease, power to divide and parcel out his real es [208] tate among his five sons. .We do not agree with him in the-opinion that no division or allotment could be made by her to Sarah Ann Schwartz, the daughter of one of the sons who died after his father. The mother had a life estate with no testamentary power. The testator’s object appears to have been to-confer upon her the power, to be exercised at her discretion, to make partition. As a necessary incident of this power to divide-upon terms and conditions to be fixed by her she could determine the purparts of each, the amounts to be paid as owelty, and the manner of 'payment. The gift to the sons, subject to the mother’s life estate, is of a fee, the five taking as tenants in common. The power was to distribute and divide among those in whom the estate was vested, and its exercise could not divest an estate or reduce it from a fee to a life estate. Such a construction cannot be adopted in the absence of express, words or necessary intendment, neither of which can be found in the will. Upon the death of one of the sons the remainder vested in him by his father’s will descended to his daughter, and an apportionment to her was a proper exercise of the power. Whether under the power to subject the shares to terms and conditions, she could determine the relative proportions of the-shares and make an unequal distribution it is unnecessary to consider, as the whole proceeding was outside of the jurisdiction of the court, and any expression of opinion upon the subject would be a mere dictum. The question of jurisdiction was distinctly raised by the supplemental answer to the petition. There is no express grant of power to the orphans’ court which will support the decree asked for, and it cannot be sustained as an incidental power. Even a court of general equity jurisdiction does not possess the power here invoked. No decree can property be made upon a conveyance by an executor or trustee under a power conferred by will, unless the aid of the court is required to supply some omission in the terms of the instrument creating the power — as in the case of a sale under a will directing a conversion but not saying by whom it shall be made. In other cases the decree of the court would add nothing to the-efficacy of the power if property exercised, nor give it validity if improperly exercised. Here there is no trust; the power is-a mere naked power, purely discretionary with the donee and not subject to the control of any court: Perry on Trusts, [209] sec. 248, et seq. Whether it has been properly exercised can be determined only when the question properly arises. If after the death of the life tenant proceedings in partition or ejectment should be instituted no decree of the court made now would conclude the rights of the parties. The order of the court denying the prayer of the petition is affirmed.