Forrest's Estate

Gest, J., The testator left his residuary estate to trustees in trust to pay the income to his wife for life or widowhood, and upon her death “In Trust to pay and convey my trust estate to my above named two sons” (Herbert M. and Richard) “or their issue in such proportions and shares and for such estates as my wife by her last will and testament shall direct and appoint and in default of such direction and appointment, then in trust to pay and convey my trust estate to my above named sons, Herbert M. Forrest and Richard Forrest, share and share alike absolutely and in fee,” with further provisions in case of their deaths before that of his wife, which need not be here recited. The widow, donee of the power, in her will, reciting the same, divided the estate equally between the two sons. Out of Richard’s share, however, she bequeathed $100,000 to trustees under a strict spendthrift trust for him for life, gave him a general power of testamentary appointment, and in default of his appointment directed the payment of the trust estate to “the person or persons thereunto entitled as the heirs-at-law and next of kin of the said Richard under the statutes of Pennsylvania providing for the distribution of the estates of intestate decedents.” The donee also appointed a similar trust for Herbert, the other son, out of his share. At the audit of the trustees’ account of the estate held in trust for Richard, the latter claimed the fund absolutely, on the ground that Emma L. Forrest, the donee of the power, had exceeded it in creating the spendthrift trust for life, and in thus limiting the remainder, and that, therefore, the, fund passed to him absolutely under the provisions of the testator’s will. The Auditing Judge dismissed the claim of Richard Forrest, and awarded the balance for distribution to the trustees, to which award Richard Forrest has filed exceptions. The donee of a general power of testamentary appointment possesses, under the law of this State, a power almost equivalent to absolute ownership, but the present is the case of a special power, which must be carefully distinguished, for the donee of such a power cannot do more than is permitted by the will of the donor: Wickersham v. Savage, 58 Pa. 365, where the court said that a special power is to be strictly executed, otherwise its execution amounts to nothing. In the present case, the will of the donor, who created the power, gave his estate in trust for his wife for life, with remainder to his two sons, and his wife was given only the power to determine the proportions, shares and estates in which the sons should take the trust property. If the will had omitted the word “estates,” no difficulty could arise. Mrs. Forrest could then only divide the estate between her two sons and designate their [462] respective shares: Smith’s Estate, 4 W. N. C. 265. The question is to what extent is her power enlarged by the inclusion of the words “for such estates?” Like every other phrase in the law, this is susceptible of interpretation according to the circumstances, but primarily “estate” refers to property or ownership, and in the present connection should mean either absolute estates or estates for life or, possibly, estates for years. This will was carefully drawn, and shows clearly that the testator understood the technical meaning of a trust, and he must have known that income, under the settled law of this State, can only be protected from creditors, or from anticipation, by the creation of a trust, yet the testator seems to have purposely refrained from doing so. In this important respect the case differs from our recent decision in Hays’s Estate, 7 D. & C. 567. There is nothing in the will of this donor to indicate any intention whatever to give to his wife the power to devise his sons’ shares of his estate to a trustee for them under a spendthrift trust, and thus restrict their ownership and control over their property, and, upon principle, this attempted execution of the power was invalid. It is necessary, however, to consider the important cases relevant to the subject. In Pepper’s Appeal, 120 Pa. 235, the power was practically identical with that contained in this testator’s will, and the donee appointed the estate to an only son for twenty-one years after the death of the survivor of several persons named, all in being, and upon condition that he should not transfer or assign the same, or commit any act by which the estate should be attached or seized in execution, etc. It, therefore, differs from the present case in that Charles Rockland Pepper was the only member of the class which were the object of the power and no trust was in terms created for him. The language of the Supreme Court, however, is very pertinent to this case (page 254): “The thought naturally suggests itself, where did Charles Pepper get the power to annex a forfeiture to the estate he was attempting to appoint? It was not inherent in him by virtue of his dominion over the estate, for, as before observed, it was not his estate. It was urged, however, that it created a spendthrift trust and as such may be sustained under the authorities in this State. But the appointmlent contains no trust of any kind, and to sustain this assumption we would have to write a spendthrift trust into the will of George Pepper. This cannot be done, either by the donee of the power or by this court. We look in vain through the will of George Pepper for one word which authorizes the donee of the power to appoint a forfeitable estate to Charles Rockland Pepper or create a spendthrift trust. It is true it authorizes the donee to appoint the share referred to ‘in such shares and for such estates’ as he shall deem proper. But the testator, when he used this language, was contemplating the distribution of the share among a class consisting of several persons, certainly of more than one. And' had there been several of the class, the donee of the power could have appointed an estate for years to one, an estate for life to another, with remainders to the third in fee, or he could have made any other division which would have given the whole share to some one or more of the class. This is what the testator evidently meant when he used the words ‘for such estates.’ They have no meaning as applied to Charles Rockland Pepper as the only member of his class, unless we hold that they were intended to authorize the donee of the power to cut down the estate which he took under his grandfather’s will, from an estate in fee to an estate upon condition and forfeitable for alienation. This we are not prepared to do.” Pepper’s Appeal referred to Wickersham v. Savage, 58 Pa. 365, among other cases, and the power in Wickersham v. Savage was very similar to that in the present case. [463] Pepper’s Appeal has been followed in Johnson’s Estate, 276 Pa. 291, and Rafferty’s Estate, 281 Pa. 325, but it is not necessary to refer to these cases in detail, inasmuch as there is nothing in them especially applicable to the case at bar. In Johnson’s Estate, the Supreme Court expressly said that the validity of the trust established for Elwood Johnson was of no moment, or admitting that Walter, the donee, had the power to subject the property to the limitations of a trust (which, however, was not a spendthrift trust) for his sons’ protection during the latter’s life, he lacked power to appoint beyond that period. In Rafferty’s Estate, 281 Pa. 325, the power to appoint the income was general and the decision was merely that the donee might, under such a power, create a spendthrift trust for his son. In Camilla Lewis’s Estate, 29 Dist. R. 796, and David Lewis’s Estate, 29 Dist. R. 798, affirmed in 269 Pa. 379, the power) in the will of Camilla Lewis, which was given to the life-tenant, was to appoint by will among the donor’s lineal descendants, “for such estate or estates and in such way, manner and form,” as she should direct. The power in the will of David Lewis was narrower, being “to such persons being my lineal descendants as my daughter may have appointed by her will in such shares and amounts as she may choose and direct by such will.” The donee appointed both estates in trust for two of the objects of the power for their lives, giving one of them a further power of testamentary appointment. This court held that the powers were well executed, at least so far as the life estates were concerned, and the Supreme Court (269 Pa. 379') affirmed the decision without adverting to the differences between the will of Camilla Lewis and that of David Lewis and, under the decision in McClellan’s Estate, 221 Pa. 261, held that the trust was valid, notwithstanding the added power of appointment given to Edward D‘. Conner. The trusts, however, in Lewis’s Estate were not spendthrift trusts, and the utmost to which Lewis’s Estate is an authority is to hold that a power to appoint among a class for such estates, and in such way, manner and form as the donee should direct, is well executed by the creation of a trust for life. Boyles’s Estate, 5 W. N. C. 363, may be referred to as deciding that the donee of a special power of testamentary appointment may create a trust for the object of the power. There the power was very broad, giving the right to appoint “in such way or manner and in such proportions and for such estate or estates” as the donee might by her will appoint. Judge Penrose held that this empowered the donee to establish a separate-use trust for a married woman, one of the objects of the power, on the ground that such a trust really effectuates the intention of the donor by confining the benefits to the selected class, following Alexander v. Alexander, 2 Vesey, Sr., 642. But Boyles’s Estate differs from the present in two important respects: First, the power was broader, as appears from the words “in such way or manner,” a fact emphasized by Judge Penrose; and, secondly, the trust was for the separate use of a married woman and not a spendthrift trust. Alexander v. Alexander was decided in 1755, and there the power was given by the testator to his wife, the equitable life-tenant, to dispose of the subject of the power among their children in such proportions as she should by will appoint. At that time a direct gift to the married daughter would have been, under the common law, practically a gift to her husband (2 Blackstone’s Comm. 433), so it was properly enough said by the Master of the Rolls that, “so far from the trust being an objection, it was more strictly carrying into execution the will of the father, a stronger execution of the power agreeably to his intent.” That is a very different thing from creating a spendthrift trust when the power is to divide among the sons, for such a trust does not protect their ownership, but detracts from it. [464] It seems clear that the spendthrift provision in the trust is the only restriction that the donee desired or intended to place upon Richard’s absolute ownership of his share of the donor’s property, and it is an inseparable and essential feature of the appointment, so that if this is invalid, as we think it is, the appointment fails in its entirety, according to the principle applied by this court in Bruntrager’s Estate, 2 D. & C. 747. Our conclusion that the execution of this power is invalid is strengthened by a consideration of the remainders appointed by the will of the donee which are given after the death of Richard, in default of his appointment, to the persons entitled as his heirs at law under the intestate laws. It may be that such a power of appointment as that given by the donee to Richard is not in itself invalid, under McClellan’s Estate, 221 Pa. 261, where, however, the power was so broad as to approximate a general power, but it is not necessary to decide the question, inasmuch as the gift over in default of appointment is to Richard’s heirs-at-law under the intestate laws. As the objects of the power, definitely stated in the will of the donor, are his two children or their issue, and as the issue, which may thus be objects of the power, means the issue of deceased sons, as determined at the death of the donee (Wickersham v. Savage, 58 Pa. 365; Lewis’s Estate, 269 Pa. 379), it seems clear that the remaindermen in default of appointment, whose interest is only subject to be divested by the exercise of the power in favor of an object of it, constitute an entirely different class, for the heir-at-law of Richard at his death is by no means necessarily his brother. The power being merely to appoint to the two sons named, the only valid remainder after a life estate to Richard would be to Herbert, and the remainder attempted to be given by the donee was insufficient to support the life estate. In Lewis’s Estate the remainder, given in default of appointment by Edward D. Conner, was undoubtedly given to objects of the power, and the Supreme Court held it to be sufficient. The execution of the power was, therefore, in our opinion, clearly excessive under all the authorities. We should perhaps refer again to the recent decision of a majority of this court in Hays’s Estate, 7 D. & C. 567, noted above, where a power to appoint among children in such shares and upon such trusts as the donee might by will direct was held to be well executed by a gift in trust for the objects of the power, subject to spendthrift trust provisions. The inclusion in the power of the words “upon such trusts” sufficiently differentiates that case from the present. The exceptions are sustained and the balance for distribution as shown by the account is awarded to Richard Forrest, free of all trusts.