Denniston v. Pierce

Opinion by Me. Justice Walling, This is an action of ejectment to recover possession of a one-third undivided interest in the National Hotel property at McKeesport. The case turns on the construction of the will of the late Joseph Pierce of that city. In our opinion the will creates an enforcible active trust, at least during the life of the widow; as to that the language of the will could not well be more explicit. A man by avüI can lawfully provide a life annuity for his widow secured by a trust, and is not prevented from so doing because the annuity may be a charge upon land embraced in the trust. Whether he will secure it by a trust or merely as a charge upon land is optional with the testator. The contention that a valid trust cannot be created where the trustee is the sole beneficiary may be sound, but does not apply here for the trustees are not the sole beneficiaries. The widow is a beneficiary and entitled to her one thousand dollars a year out of the income and if necessary out of the principal of the estate. The fact that trustees may be entitled to a portion of the income does not destroy the trust, nor disable them from acting as such. One may hold property in trust for the use of himself and others: American & English Encyclopedia of Law (2d ed.) 955; 39 Cyc. 248. The case at bar is clearly distinguishable from Hahn v. Hutchinson, 159 Pa. 133, for there the trustee was the absolute owner of all the income of the entire property during his life. This distinction is clearly pointed out in the case of Wanner et al. v. Snyder, 177 Pa. 208, which [135] case seems to control this. And see Ashhurst v. Given, 5 W. & S. 323; also Huber’s App., 80 Pa. 348. We agree with the court below that, “The fact that the three sons of the testator, who are also 'beneficiaries, are made trustees cannot have any effect on the validity of the trust so far as the widow is concerned.” If plaintiffs are entitled to possession they would seem to be also entitled to partition, Avhich would result in a sale of the property, and thus defeat the intent of the testator; and that in the face of the express provision that this property shall not be sold during the life of the widow. We decide the case solely on the ground that plaintiffs are not at present entitled to possession, and express no opinion as to whether or not the will creates a valid spendthrift trust. As that question is left open, the judgment should be without prejudice. The judgment of the court below is modified by adding thereto the words, “without prejudice to the plaintiffs’ right t.o assert title to the premises here at issue in any action that may be brought after the death of Henrietta Pierce, widow of said Joseph Pierce, deceased.” And as so modified the judgment is affirmed at the costs of the appellants.