Lejee's Estate

Opinion by Mr. Justice McCollum, The provisions in the will of William R. Lejee and the codicils thereto, on the construction of which the whole contention on this appeal depends, are as follows : In the first clause of the will the testator leaves to Eugenia J. Marshall and to each of the other persons named therein $1,000, to be paid as soon after his decease as practicable, on the assumption that they might [423] need it for immediate support. In the fourth clause of the same he said: “ I give and bequeath to the Pennsylvania Company for Insurances on Lives and Granting Annuities, the sum of twenty thousand dollars in trust for my niece Eugenia J. Marshall during her life, to be paid to her or her authorized attorney, and at her decease the principal to be divided among her children, share and share alike, the issue of a deceased child to represent the parent. Should my said niece die without children or their issue surviving her in that case the principal so held in trust for her shall be divided among the children of my niece Williamanna Fullerton and their issue as I hereinafter provide for such children and issue. As my niece Eugenia J. Marshall is unmarried should she at any time desire to increase her income by an annuity the said trustee shall, at her request, at any time, invest the whole or any part of this twenty thousand dollars in an annuity for her, nor do I restrict her as to this investment in case she should hereafter marry.” In the codicil dated March 12, 1894, we find the following provision: “ The purpose of the present codicil is to add to the legacy of my niece Eugenia J. Marshall the sum of ten thousand dollars and to give and bequeath to each of my nephews, J. Palmer Fullerton and William L. Fullerton, their heirs and assigns, also the sum of ten thousand dollars. In all thirty thousand dollars, free of tax. The said legacies to he provided for and paid with other individual bequests before any appropriation is made for those to public or benevolent institutions, which amount in all to twenty-six thousand dollars. The said legacies also to participate pro rata in the division of the rest and residue of my estate should there be any to divide.” The main contention relates to the effect upon the trust created by the fourth clause of the will of the provision in it in regard to the purchase of an annuity. The learned court below regarding the annuity provision as destructive of the trust and the interests intended to be protected by it, and therefore as investing Eugenia J. Marshall with absolute ownership of the entire trust fund, awarded the same to her. It is obvious that this award, if sustained, will defeat the unmistakable purpose of the testator in creating the trust. It was clearly his intention to make ample provision for the suitable maintenance of his niece during her life, and it is probable that when he wrote [424] his will he believed that the income of the fund bequeathed in trust as aforesaid would be sufficient for such maintenance. But, conscious that there might be a contingency in which the income from the trust fund would be inadequate for such support as he intended she should have, he provided for an increase of it in the manner and on the terms stated in the concluding paragraph or sentence of the fourth clause of his will. It was his beneficiary who was to determine whether there was occasion for increasing her income, and on her expression to the trustee of her desire to increase it by an annuity it was made the duty of the latter to purchase it for her in accordance with her request. Certainly this was a concession to her by the testator of a liberal discretion, in full confidence however, that she would exercise it in conformity with his clearly expressed intentions. If an investment of one fourth of the fund in the purchase of an annuity would sufficiently increase her income, it was not expected that an investment of a greater amount would be made in this form because it would necessarily take from the persons to whom the principal was given at her death that which the testator intended they should have. It is said that under the will she may require the trustee to invest the $20,000 in an annuity. This may be true, but nevertheless such an investment if made must be based on her expressed “desire to increase her income.” It is also said that having compelled the trustee to make such an investment she may sell the annuity and dispose of the proceeds of the sale as she pleases. This also may be true, but our attention has not been called to any express direction of the testator to invest any portion of the trust fund in her name. As it is not claimed that Eugenia J. Marshall has any “ desire to increase her income by an annuity ” there is no occasion to consider the effect upon the trust of the purchase of an annuity by the trustee on her request. But while the discretion allowed to her by the testator has not been exercised we have deemed it proper to indicate our view of his purpose in conceding it. We cannot assent to the proposition that the provision in regard to the purchase of an annuity, considered by itself, is destructive of the trust and of the interests for the protection of which it was created. The direction by the testator to the trustee to purchase an annuity for the cestui que trust on her [425] request, founded on her desire to increase her income in that way, does not authorize the payment directly to her of the whole trust fund to dispose of as she may think proper. It was not so intended, nor is there any rule of construction which demands that it shall be so interpreted. This is not a case in which there is an absolute gift of a fund to the beneficiary with directions respecting the investment and use of it. It is a case in which there is a gift of a fund to a trustee to invest and to pay the income of it to one person for life, and at her death to pay the principal of it to the persons designated to receive it. The decisions cited by the appellee to sustain her contention are applicable to the former, but not to the latter. It may be conceded that some of the English cases, especially the case of Messeena v. Carr, Law Rep. 9 Eq. 260, seem to afford some support to her claim, but we think that none of them can be justly said to furnish a clear warrant for it. As her claim, if sustained, will defeat the plain purpose of the testator in creating the trust and strike down important interests intended to be protected by it, nothing short of such a. warrant will justify its allowance. No decision of this court which authorizes it has been brought to our notice. In some respects the appellee’s claim in this case resembles the claim of the appellants in LaBar’s Estate, ante, p. 1. The possibility that the beneficiary may exercise the discretion given to her in regard to the purchase of an annuity, and thus wholly or partially destroy • the interests in remainder, is not sufficient ground for dispensing with the exercise of it, and awarding the entire fund directly to her. The exercise of the discretion in good faith may destroy these interests but the mere existence of it cannot. For reasons clearly stated by the learned auditing judge we concur in his conclusions that the testator intended by the codicil of March 12, 1894, to add to the sum of $20,000 bequeathed to the Pennsylvania Company for Insurances on Lives and Granting Annuities in trust as aforesaid the further sum of $10,000 to be held by the trustee for the uses and purposes declared by his will. We are not satisfied that error was committed by the court below in the distribution of the residuary estate. It follows from what has been said that the $80,000 awarded to Eugenia J. Marshall should have been awarded to her trustee, [426] fcbe Pennsylvania Company for Insurances on Lives and Granting Annuities. Decree reversed and record remitted to the court below with direction to enter a decree in conformity with this opinion. The costs to be paid by the appellee.