Palmer's Estate

Van Dusen, J., Testator’s will provided: “Item 4. I give and bequeath to Mrs. Emma Robinson, wife of Joseph Robinson, of Camden, New Jersey, and to her sister, Mrs. Anna Keim, wife of John S. Keim, of Philadelphia, each one thousand dollars ($1000) for their sole and separate use respectively.” ■ This sum was awarded to a trustee appointed for the purpose to hold for the separate use of Mrs. Robinson (Kiefaber’s Estate, 8 D. & C. 231; Van Blunk’s Estate, 275 Pa. 589). The latter has now died leaving a will probated in New Jersey. The Auditing Judge awarded the fund to the New Jersey executrix, on the settlement of whose accounts it would be determined whether such fund was liable for the debts of the beneficiary, and whether she had power to dispose of it by will, or whether it passes to the parties entitled under the intestate laws of her domicile. Exceptions are filed by the residuary legatees of the creator of the trust, claiming that the eifect of the separate use was to cut the apparent absolute estate down to a life estate. The contrary was established in Faries’s Appeal, 23 Pa. 29; Van Rensselaer v. Dunkin’s Executors, 24 Pa. 252; Dubs v. Dubs, 31 Pa. 149; Rank v. Rank, 120 Pa. 191. In Van Rensselaer v. Dunkin there was a gift of income only, and yet it was held that the married woman impliedly took a fee, under a well-known principle, in spite of the separate use. When we notice that the successful claimants in those cases were the persons entitled to the married woman’s estate in case of intestacy, including the husband as tenant by the curtesy, we are prepared to understand the cases which have misled the exceptants, viz., Steinmetz’s Estate, 168 Pa. 175; Dallett v. Taggart, 223 Pa. 180. In those cases the unsuccessful parties claimed as devisees under the married woman’s will, and they failed because of the well-settled Pennsylvania rule that the beneficiary of a separate-use trust has no power during cover-ture to dispose of the fee by will (unless the trust gives such power), though [30] she owns the fee and it descends as her property. The purpose is to protect her from the influence of her husband: Lancaster v. Dolan, 1 Rawle, 231; Thomas v. Folwell, 2 Whart. 11. To this extent she is under the disability of a married woman at common law, as the Married Woman’s Enabling Acts do not apply to property held for separate use: MacConnell v. Lindsay, 131 Pa. 476. Her executor, however, is still her personal representative, entitled to receive this portion of her personal property like any other, though the will may be ineffective to dispose of it. The exceptions are dismissed and the adjudication is confirmed absolutely. Henderson, J., did not sit.