Estate of Harbster

Opinion, Mr. Justice Green: The testator made no gift directly to his son Howard of any part of the residue of his estate. The whole of the residue was directed to be divided into seven equal shares or parts, two of which he gave absolutely to two of his daughter’s. He [357] then directs that his executors shall invest one seventh for each of two daughters and two sons; one of the latter being Howard, the appellee. The investment is to be made by the executors “ in good and reliable securities, for the use of my son Howard Ellsworth Harbster.” The testator then further directs “ that the interest of the respective shares or parts bequeathed to my four last-named children, in trust as aforesaid, shall be paid to each of them, semi-annually, for and during their natural lives, and after their death the principal shall go and be paid to their children or children’s children in the proper line of descent; but if either of my said four last-named children, whose shares are thus given in trust, shall die without leaving children or grandchildren, as aforesaid, or any direct descendants from their bodies begotten, then such share shall revert back to my estate and be inherited by my children or their legal heirs.” It will be perceived at once that none of these four legatees was ever to have any possession, estate, or interest in the principal sum of the several shares. There was no bequest to them for life, with remainder to their children. They could in no circumstances take anything but the interest accruing upon the securities in which the shares were invested; and this interest they could only get from the executors, whose duty it was to invest the shares in good and reliable securities, and pay to each of them, semi-annually, the interest, only, upon the amounts of the respective shares. In order to carry out this positive provision of the will, it is indispensable that the executors shall have in their own possession the whole of the residue set apart for them,—four shares,—and invest the same in good and reliable securities. Of course, this duty could never be performed if the principal of the shares is given to the four children of the testator, and we could not make a decree giving it to them absolutely, without striking down entirely the express and peremptory provisions of the will. But, in addition to this, the executors are required not only to continue paying the interest to these four children during the entire period of their lives, but after their death they must still have the principal of the fund, in order to pay it over to the children or grandchildren of the legatees of the interest, and they must actually pay it over to such children or grand [358] children or their lineal descendants. And still another duty devolves upon them in regard to the principal. If there are no children or other lineal descendants of any one of the original children of the testator who may die, the principal of the fund invested for that share reverts back to the testator’s estate, and must be paid to the other children or their heirs. In this case the original children of the testator take the share of the one so dying, directly and absolutely, and this makes another and different disposition of that part of the residue. Now, if we give these several original shares of the residue to the legatees of the interest only, this part of the will can never be carried out. It is very clear, indeed, to us that the trust reposed in the executors is an active trust, which makes it necessary at all times for them to have possession of the fund until it is ultimately paid over to the persons entitled to the principal. Further discussion is unnecessary. If authorities are needed, they can be found in Sheets’ Est., 52 Pa. 257; Bacon’s App., 57 Pa. 504; Myers’s App., 49 Pa. 111; Davis’s App., 100 Pa. 201; and other cases. Haldeman v. Haldeman, 40 Pa. 29, has no application, as its facts are entirely different and do not present the same question. The decree of the Orphans’ Court is reversed at the cost of the appellee, and it is ordered that the petition of Howard E. Harbster, and all proceedings under it be dismissed, with costs.