Page images
PDF
EPUB

Hays's Estate.

power conferred upon him, and, hence, are void and should be stricken down, and the authorities uphold this conclusion.

In Horwitz v. Norris, 49 Pa. 213, the donor of the trust gave it to his son for life and then to his children in such shares and proportions and for such estate and estates, use and uses, as he might appoint. It should be noted that he could only define the shares and proportions and direct the estates and uses. The appointment of the remainder was bad, and, hence, it was declared invalid. The trusts for the daughters in whom the remainder in fee under the will of the donor was vested were not for their sole or separate use, and, hence, Mr. Justice Strong held they were executed under the statute of uses. And he further pointed out that if they were not so executed, all of them having contingent interests, the class being closed, could join in asking for a termination of the trust, and said, as was quoted above, "Such interests could not be set up in opposition to the decree for which they pray.”

In Wickersham v. Savage, 58 Pa. 365, the donor gave his estate to his son for life, and after his decease to and among the children and issue of said son in such shares and proportions and for such estates as he by his last will or other appointment in writing shall direct; and in default thereof, then to and among said children and issue and their heirs equally. The donee of the power had but one child, and on his death, after charging the estate with the payment of $3000 annually to the widow, he appointed the residue to be held by his executors in trust to receive and pay over to his son John $1500 annually until he arrived at the age of twenty-five years, and thereafter the whole of the income for life, with provisions against liability for debts and anticipation of income. Chief Justice Thompson, speaking for the Supreme Court, said that the right to exercise the power of appointment did not arise, because there was only one in the class. We must, nevertheless, ascertain what was really involved by the decision. Undoubtedly, a valid separate-use trust could have been created for any married daughter, had there been such, under Boyles's Estate, 5 W. N. C. 363; a good life estate could have been created for the only son, but as the remainder in fee was vested in him, that life estate was properly terminated unless the provisions of the trust against debts and anticipation of income were good. It could be said that the appointee took a good life estate under the will of the donor, which could not be terminated because of its spendthrift character. But in terminating this trust, the Supreme Court has implicitly ruled that under such a limited power a spendthrift trust could not be set up.

In Pepper's Appeal, 120 Pa. 235, this question seems to have been clearly ruled. Therein the donor gave a life estate to his son Charles, with power to appoint "to the use of such of his children and issue and for such estates and in such shares as he shall by his last will appoint, and in default of appointment, then to the use of his children who may be living at his death and the issue of any deceased child, his heirs, executors, administrators and assigns, as tenants in common, the issue of any deceased child to stand in the place of the decedent and to take only the shares their parents would have taken if living."

The son referred to had an only child. Under the will of the donor he acquired a vested estate in fee, or the entire interest, subject to being divested, so far as the power should be validly exercised by his father. The question, therefore, in issue was, has there been a valid exercise of the power?

The material part of the execution of the power by Charles Pepper is as follows: "Until the expiration of twenty-one years after the death of the

Hays's Estate.

survivor of my brothers, George S., Lawrence S., and Frederick Pepper, of my sister, Mrs. Catharine Cardette, and of myself, all of whom were living at the death of my said father, I devise, bequeath and appoint my said share in my father's estate to my said son Charles Rockland Pepper, upon the express condition, that he shall not in any manner convey, assign or transfer the same or the rents, issues and profits thereof to any person whomsoever, or do or suffer any act, matter or thing whereby the same shall be attached, seized or taken in execution or be made subject to or be affected by the insolvent or bankrupt laws of the United States, or of any other state thereof, or of any foreign country, and in case any of these events shall happen contrary to the true intent and meaning of the foregoing condition within the said term of twenty-one years after the death of the survivor of my said brothers, sister and myself, and also in case my said son shall die before the expiration of the said term of twenty-one years leaving issue, then, and in any such case, I devise, bequeath and appoint my said share in my father's estate to such issue, their heirs, executors and administrators, and if more than one, in such shares and proportions as if my said son had died seized and possessed thereof intestate."

This brings me to the crucial question as to whether the donee of the power could validly erect a trust or estate spendthrift in character, and as to this Mr. Justice Paxson said (page 254): "It was urged, however, that it created a spendthrift trust, and as such may be sustained under the authorities in this state. But the appointment 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."

Under the will of the donor, the donee of the power, had he a married daughter, could undoubtedly have set up a valid separate-use trust. He could have appointed a valid life estate in his son, but as the remainder was vested in him, the use would be executed.

If the spendthrift provision could have been validly attached to the estate for years, then undoubtedly we should have had a good trust which could have been supported; but as the will of the donor did not confer the power to create a spendthrift trust, its inclusion in the exercise of the power was excessive, and, hence, stricken down.

But it is said the will in this case did not establish any trust at all, let alone a spendthrift trust, and that that was the real ground of the decision.

Hays's Estate.

This, however, overlooks the reasoning of Penrose, J., in the court below, wherein he pointed out (120 Pa. 242) that the estate for years was good, and the legal title could have remained in the trustees under the will of the donor, and he then vigorously argued (page 246) that the spendthrift feature should be sustained as being for the benefit of the cestui que trust.

This court, sitting in banc, refused to adopt these views, and therein was sustained by the Supreme Court.

It may be urged that the real ground of decision in Pepper's Appeal, 120 Pa. 235, was that the court will not be astute to indulge in inferences to clog titles and set up restraints on alienation.

The exercise of the power by the will of Dr. Hays is bad, for the further reason that he has not created a trust. He has failed to name trustees and he has failed to give the corpus of this estate in trust. The nearest he has come to conforming to these two necessary requirements occurs in Item IV. Therein he directs that his single daughters shall be permitted to occupy the house No. 266 South 21st Street (which belonged to this donor's estate) free of rent, and he directed, "my (his) said trustees" to pay all charges in connection therewith, and presumably out of his estate. He then provides that if the daughters do not desire to occupy the house, his trustees may rent or sell the same and the proceeds "shall be held by my said executors & trustees under the remaining trusts hereinafter set forth in this my will." Which of the "remaining trusts" has he referred to? May we say the trusts of his wife's estate? He has created none for he has failed to give the corpus to a trustee.

The next provision-item V-assumes he has given the corpus of his wife's estate in trust to the trustees of his will, but we have looked through the entire will, and in vain, as no such gift is made.

This item is as follows: "Subject to the foregoing provisions, I direct my said Executors and Trustees and their successors in the Trust as to the clear net income arising from my wife's estate not derived from the Trusts created by Annie Bradford, to observe and adhere to the following directions: Monthly, to divide and pay over the clear net income derived from my wife's estate in precise conformity to the plan of distribution as to income from my own estate, as hereinbefore stated."

These clauses contain no gift in trust of the corpus of the appointed estate. The utmost that can be said for the title of the corpus is that it vested in fee under the will of the donor and at least he has given contingent legal life estates to the four children. But spendthrift provisions may not be annexed to legal life estates (see Ehrisman v. Sener, 162 Pa. 577), and the children desire these interests released and are competent so to do.

The attempted appointment of this estate is bad for a further reason. The will and codicil contains two powers-that in the will is very limited, and under it Dr. Hays could merely distribute his wife's estate among the children in such shares and upon such trusts as he by will should do; on the other hand, while the power in the codicil was limited, it was only conferred in the event that Mrs. Hays survived the doctor, and this did not happen.

It is as follows: "In the event of my surviving my husband, I, Minis Hays, & in that event only, I give, devise & bequeath all the rest, residue & remainder of my estate, both real & personal to the Executors & Trustees nominated in his will to be held & distributed both as to income & principal, on the same terms & under the same provisions as he has directed in his last will & testament for his own individual estate & I direct that my estate be held with his as a single trust estate."

Hays's Estate.

It is impossible to read Dr. Hays's attempted appointment of this estate, with its many void provisions, without coming to the conclusion that he has tried to deal with her estate as his own, and that he could only do in the event Mrs. Hays survived him. He has actually so far regarded the appointed estate as his own as to neglect to give it in trust or to name trustees.

The conclusion is inevitable that he intended to exercise the power in the codicil, and this he had no right to do. It follows, then, that he had no intention of exercising the very limited power in the will; therefore, his exercise of the limited power is bad, and, hence, this estate vested in the four children under the alternative provision in the will of Mrs. Hays.

Summing up, I submit that (1) if the will of Dr. Hays creates a trust of the estate of Mrs. Hays, then the execution of the power is bad in attempting to create a spendthrift trust, as was implicity ruled in Wickersham v. Savage; (2) the court will not be astute to infer a trust, as was refused in Pepper's Appeal; (3) it was Dr. Hays's intent to exercise the unlimited power in the codicil, and this he could not do; (4) the exercise of the limited power in the will is only good to the extent of the contingent life estates, and these the parties renounce.

All of the four contingent remaindermen, in a class which is closed, and all being sui juris, have united in a request for the termination of the trust. I have reached the conclusion that this request should be granted, and, hence, I would sustain exceptions 4, 5, 6 and 7, amend the adjudication accordingly, and award the entire fund of principal and income in equal parts to the four children of the testatrix.

Wilmoth v. Lynch Construction Company of New York.

Foreign attachment-Rule to dissolve-Contract-Notice required under contract-Time-Foreign laws.

1. In a foreign attachment based on a contract by which defendant, a foreign corporation, was to return the purchase money paid by plaintiff for its stock on thirty days' notice, the attachment will not be dissolved because no such notice was given in the time specified, where it appears that the time between the issuance of the writ and its return afforded defendant a much longer period to comply with the demand than the terms of the contract required.

2. In such case, the invalidity of the contract under the laws of the state where it was to be carried out cannot be set up on a rule to dissolve the attachment.

3. An affidavit of cause of action may be amended.

Rule to dissolve foreign attachment. C. P. No. 5, Phila. Co., Sept. T., 1925, No. 57.

Ewing, Remick & Saul, for plaintiff; M. J. Speiser, for defendant.

MARTIN, P. J., Sept. 29, 1925.-Plaintiff issued a writ of foreign attachment and filed an affidavit of cause of action, to which was attached a copy of a contract, by the terms of which defendant agreed to employ plaintiff and plaintiff agreed to purchase and pay for shares of stock in the defendant corporation. The affidavit avers that plaintiff entered into the employ of defendant and purchased the stock.

The contract stipulated that payment for the stock should be made in cash, and provided, in case the employment of plaintiff by defendant should for any reason be terminated, the defendant, on thirty days' notice and a tender of the stock, would purchase it and pay to plaintiff the purchase price paid by him, with 6 per cent. interest.

Wilmoth v. Lynch Construction Company of New York.

The affidavit avers that plaintiff severed his employment with defendant, and, on or about April 25, 1924, made tender of the stock to defendant and demanded a return of the money he had paid for the stock, but that defendant refused to purchase or pay for the stock.

Upon presentation of a petition by defendant this rule was granted to show cause why the attachment should not be dissolved.

There is no averment in the affidavit of cause of action that defendant had property within the jurisdiction at the time the writ issued, but plaintiff has requested permission to file an amended affidavit of cause of action containing the averment that defendant had property within the jurisdiction at the time the writ issued, and permission is granted plaintiff to file an amended affidavit containing that averment.

It is objected that the affidavit of cause of action fails to state that plaintiff gave defendant thirty days' notice of his desire to have defendant purchase the stock, as required by the terms of the contract.

It is averred in the affidavit of cause of action that the tender of the stock and demand for the purchase money was made "on or about April 25th, 1924." The writ of foreign attachment issued on July 30, 1925, and was made returnable the third Monday of September, 1925, affording defendant a much longer period to comply with the demand than the terms of the contract required.

It is stated in the petition to dissolve the attachment that the agreement between plaintiff and defendant, upon the breach of which this action is based, is illegal and invalid under the laws of New York.

This, if true, is matter of defence to be submitted at the trial of the cause, but is not a proper subject for consideration on a motion to dissolve the attachment.

And now, to wit, Sept. 29, 1925, upon plaintiff filing an amended affidavit of cause of action averring that defendant had property within the jurisdiction of this court when the writ issued, the rule to dissolve the attachment is discharged.

Miller et al. v. Bell.

Practice, C. P.—Trial—Remarks of counsel-Withdrawal of juror-New

trial.

1. At trial, the counsel for plaintiffs in his address to the jury used the words "these oily, slimy scoundrels that go through the Commonwealth robbing people of millions of dollars," evidently referring to the defendant. Defendant's counsel objected to the remarks and asked the court to withdraw a juror and continue the case The court refused and did not caution the jury not to be influenced by the remarks: Held, that a new trial should be granted.

2. "Even if counsel had withdrawn his remarks and the court had instructed the jury to disregard them, it is not clear that that would have been sufficient to justify the refusal to withdraw a juror."

Rules for new trial and for judgment n. o. v. C. P. Berks Co., April T., 1924, Nos. 61 and 62.

William B. Bechtel, for plaintiffs at trial; C. H. Ruhl, at argument.
John B. Stevens, for defendant and rules.

SCHAEFFER, P. J., Oct. 17, 1925.-These cases involving the same set of facts were tried together and both resulted in verdicts for the plaintiff. The plaintiffs are husband and wife and seek to recover from the defendant the sums of money paid by each for shares of the capital stock of the Reading Rubber Company, of which the defendant was president. They based their

« PreviousContinue »