Kiefaber's Estate

Lamorelle, P. J., The question raised by exceptions requires a determination of testator’s meaning of Item 9th of his will. This item reads thus: “I will and bequeath unto Elizabeth Eva Reiss the sum of Two thousand & no/100 Dollars to be paid to her annually in quarterly payments of (500$) Five hundred and no/100 Dollars each on the first monday of January, April, July and October of each Year during her life, at her decease it is my will that this sum of (2000$) two thousand & 00/100 Dollars be paid in a like manner to Orr C. Hubbard of Catawissa Columbia Co. Penna. His heirs during their life. The above named sums shall be paid to them without Her or them being in any way liable for Her or their debts, contracts, engagements, alienations, and anticipations nor any liens, levies, attachments or sequestrations.” Judge Gummey, who audited a previous account, directed that a fund of $66,000 should be set aside and held by the executors in order to secure these payments. At the audit of the subsequent account (that now before the court) the parties in interest requested, among other things, that the fund be distributed. They produced agreements and settlements — the validity of which the Auditing Judge was to pass upon; their contention was, and is, that no reason now exists for withholding this fund. The Auditing Judge, following the ruling of Judge Gummey, and, in addition thereto, giving what, in our opinion, are good and sufficient reasons for his own conclusions, directed that this sum should be retained for the purposes as set forth in the item of the will above quoted. Among the many objections to this ruling, exceptants stress the fact that there is no “res,” no trustee named, and that no active duties are required. It is obvious, however, that in all cases of this character, there is a “res,” to wit, usually the entire estate, after the payment of debts and costs of administration, or, as in the instant case, a sum carved out of the estate, which, in the opinion of the court, was deemed sufficient (Channon’s Estate, 28 Dist. R. 479); that where the necessity exists, the court, following the principles of equity, will appoint a trustee or some one to hold the fund [234] (Varner’s Appeal, 80 Pa. 140); and that there are active duties imposed: the payment of sums certain at fixed periods; withholding same until the time of payment arrives, and so preventing creditors attaching, or the so-called annuitant from anticipating, which could not, nor would not, otherwise he effective: Ritter’s Estate, 148 Pa. 577. It is further contended with much earnestness that testator could not have intended to create a “spendthrift” trust by Item 9th, because in other clauses of his will he used apt words when such was his purpose. Remarking, incidentally, that his so-called “apt” words were futile, in that the trusts referred to have been declared by this court ineffective for other reasons, we may say, once for all, that no set phrases are necessary for the creation of a spendthrift trust; the purpose and intent of the testator is to be sought; and when the language used by him reasonably shows what was his desire, the courts are bound to so interpret. This may best be illustrated by what is said by the late Judge Penrose, in his adjudication in Jeitles’s Estate (as of April Term, 1899, No. 149): “The will does not, in terms, create a trust; but it is a familiar principle that a trust may be implied, and that a testator’s intention in this respect is to be gathered from the terms and provisions of the will. The mere fact that there is a gift of income for life, only to the sons, is not, of course, sufficient, standing by itself, to give rise to such an implication, since the interests taking effect at their deaths, respectively, may be protected by the entry of security under the acts of assembly; but here there is an express provision that the income shall not be liable for the debts of the sons, or be capable of assignment, &e., &e., and this can only be accomplished through the instrumentality of a trust. On this subject, see Bush v. Allen, 5 Mod. 63; South v. Allen, 5 Mod. 101, &c., &c., &c. “It is quite clear from the provisions of the will that the testator intended the trust to be performed by the executors. The functions of an executor, qua executor, are usually ended at the expiration of a year or as soon after that time as in the ordinary course of dealing the estate can be settled; but here it is apparent that duties were contemplated on the part of the ‘executors,’ so-called, of indefinite duration.” In Jeitles’s Estate, the income and interest was given to three sons in equal shares for life, with power of appointment, the issue of the sons to receive their shares if the power was not exercised. The income was not to be pledged, nor was it subject to execution or liability for debts, etc. In the instant case, it is argued with vigor that a spendthrift trust cannot be superimposed upon a legal estate (which argument, however, would appear to be answered by Jeitles’s Estate, supra), and that the will shows that testator intended the recipients of his bounty to be exonerated, and not that which he gave them. Such construction of the will would result in negation, for though a testator may do as he pleases with his own (due regard being had to the policy of the law), he may not control his legatees in the use of their legacies after the receipt thereof. As said before, his intention must be sought, and if that is legal, it is our duty to give it due force and effect. Whether or not all parties interested in the payment of this annual sum of $2000 are before us need not now be decided. The rights of Orr S. Hubbard — who succeeds Elizabeth Eva Reiss — rise no higher than her’s, for he, too, receives the money “in like manner,” and if the spendthrift clause applies to her, he comes within the same category. “His heirs during their life” almost defies interpretation; possibly it attempts to create a perpetuity; if so, that cannot affect the prior life estates. [235] It is also claimed that this item of the will creates an annuity — a legal estate — and that prohibition of the right of alienation is against principles of public policy. In argument, the gift has been treated as an annuity; in strictness, it is not such. “An annuity is a yearly payment of a certain sum of money granted to another in fee for life, or years, charging the person of the grantor only,” quoted by Judge Penrose from Coke; see Bayard’s Estate, 7 Dist. R. 279, 281; Warley’s Estate, 22 Dist. R. 790, and eases therein cited. Here, as we view the will, we have the ordinary case of a gift of certain sums at certain times to be paid by some one from the whole estate to a legatee, with right of succession by another legatee and with more or less vague rights in remaindermen, without the right of anticipation by the recipients and with no liability, so far as these stated sums are concerned, until and unless paid. There is no restriction on alienation, because the sums are not the legatees’ unless and until they make them their oWn, that is, at the time fixed for receipt thereof. We see no difference in principle, or in effect, where income of a specified sum is given without liability for debts; where an annual sum from income is so given, and where, as in the present case, the periodic gift may be of principal. In all these instances the purpose can be fulfilled only in event that some one other than the cestui que trust, or recipient of the benefit, is the disbursing and distributing agent. In any and all of such cases the design of testator is frustrated if the court should uphold an agreement for an immediate and outright distribution where testator intended another and entirely different disposition. Accordingly, all exceptions are dismissed, and the adjudication is confirmed absolutely. Judge Henderson did not sit.