Bloomer's Appeal

83 Pa. 45, 1877 Pa. LEXIS 24

Opinion

Mr. Justice Woodward

delivered the opinion of the court, January 15th 1877.

In passing on the questions in issue here, it has been felt to be the duty of this court to make every intendment the record would permit in favor of the appellant. By her father’s will, the whole of his estate was vested in her, and she was clothed with unlimited discretion in settling the fortunes of his' other children. The exercise by her of this discretion in the provision made for her brother and sister, was disinterested and generous as well as just. Until the unhappy breach in her relations with Mrs. Sproul occurred, the trust appears to have been faithfully administered, and the rights of the eestwis que trust are amply secured by the private estate of which the appellant is possessed.

Governed by this general view, it was believed throughout the argument and in the subsequent consideration of the cause, that the final decision of the master was erroneously based on the facts he found to be established by the evidence. The character of the defendant’s testimony, what was termed “ the spoliation of 'the books of the trust estate,” and her alleged open defiance of the order of the court, were held sufficient to warrant apprehension of danger to the interests in her hands. It would be a very hard rule that would require the character of a party to an angry legal contest to be tried by the results of a long and close examination respecting large and diversified property interests in which intricate details had been involved. The “spoliation of books” Avas the destruction of accounts and memoranda of Avhich duplicates in the possession or reach of the appellees were in existence. The act put no part of the trust estate at hazard, and can readily be attributed to ignorance and inexperience. In the course taken by her while the litigation was pending, it is to be assumed that the appellant acted under the advice of counsel. Nor was what the master regarded as the harshness and vindictiveness of the appellant towards Mrs. Sproul believed to be a justification of the final decision. The facts disclosed in this connection grew out of the suit while it was in prospect and in progress. The state of feeling shown by the testimony to have existed between these parties is greatly to be deplored. The existence of evil temper that exhibits itself in evil deeds or explodes in evil speech, is always deplorable. But the bitterness of family feuds is proverbial. Metí and women suffer themselves to speak to or of relatives from whom they differ — especially near relatives — in a manner they never adopt in speaking to or of strangers. And the master made too much account of perhaps natural demonstrations of a temper subjected by the exigencies and incidents of this suit to unwonted strain.

It was thought also the evidence did not warrant the finding that the appellant had removed from Pennsylvania. And it is still believed that the purchase and occupation of a house in the city of Washington, without more, would not, even where a man might be the head of a family, be enough to imply the intention of a change of domicile. Multitudes of families not even indirectly connected with the business of the national government, live there for years, and if a profession is not pursued nor a business undertaken, the presumption to be rebutted is that the residence is temporary, and not that it is permanent. Looking into the evidence, however, it is found that there is nothing to show a definite purpose on the part of the defendant to return to Pennsylvania. In her answer she denied that she intended to acquire a new residence, but she stated that she had purchased a farm in West Virginia at the request of her son, to whom she designed to convey it at his majority. She added that she would probably remain in Washington until her son should finish his education. This indicated at least a protracted absence and an indefinite return. The 20th section of the Act of the 14th of June 1836, makes it lawful for the court having jurisdiction to remove a trustee who “ shall have removed from the state or ceased to have a known residence therein for the period of a year or more.” Upon the facts disclosed in the evidence, it cannot be said that there was error to warrant a reversal on this ground in the decision of the master and the decree of the Common Pleas.

It remains to inquire to what extent the decree ought to be carried out. So far as the property dedicated by the appellant to the use and benefit of Mrs. Sproul and her children was subjected to the characteristics of a strict trust, it was within the jurisdiction of the court below, and their action will have to be left undisturbed. But there were portions of the estate in which the appellant expressly retained contract rights, and over which she reserved exclusive personal dominion. The undivided half of several tracts of land was embraced in the gift to Mrs. Sproul. After defining the trusts on which the property should be held, the deed proceeded in these words : “ With the proviso, however, that I may at any time, at my own absolute discretion, sell and convey the lands and property hereinbefore mentioned, or any part thereof, and make deeds for the same whenever it may to me seem desirable (this power to be personal to myself, and not to be exercised by any other trustee under this declaration); and I hereby bind myself to invest the money arising from any such sale, and to hold it subject to the purposes of this trust, just as the land was held.” It is manifest from the language of this proviso that the reservation of control over property by the appellant was intended to be confined to land. That it was intended also to be confined to the land of which she was a tenant in common, was shown by her statement in the answer to the bill. “I reserved powers to myself,” she declared, “ because they are necessary to the full enjoyment of my own property. Under said declaration of trust, my sister and myself are tenants in common of about $100,000 worth of real estate. I reserve the absolute power to sell at my discretion her share of this property, because much of it is coal property, and is of a nature that it would only sell to advantage by being sold together. There are several pieces of property out of the state of Pennsylvania in the same position, and I was not willing to part with this power or divide it with others.” When the trust was declared, the master has found that the appellant held the absolute title to the whole of' her father’s estate. In divesting herself of any part of that title, it was competent for her to impose any conditions she might deem expedient upon the property transferred. In effect, the deed made her the trustee of any moneys she should receive from the real estate held in common after it should be sold. All she bound herself to do respecting that property was to hold the money arising from its sale “subject to the purposes of the trust.” She thus retained a control over and an interest in this part of the property described in the declaration, and with that the court, under the powers conferred on them by the statute, were not authorized to interfere. Under the facts found by the master, this deed is subject to the rules that govern voluntary grants. It is to be construed as to the grantee according to its strict terms, and so as to effectuate the intention of the grantor. While the residue of the estate described in the declaration of trust will have to be transferred to the control of a new trustee under the decree of the court below, the lands held in common must be left in the appellant’s hands until the present situation of the parties and property shall be in some way changed. The right to retain the management of this property, however, is subject to the duty on the part of the appellant to give adequate security for the faithful discharge of the duties which the deed imposed. She is found by the master’s report to be resident out of the state, and the oestuis que trustent have the right to demand protection, not only against ordinary hazards, but against the consequences of absence and neglect.

The imposition of the costs on the appellant, even in view of the equities of the case as they were adjusted by the master and the Common Pleas, was by the application of a rule unduly harsh. There had been no breach of trust, no waste, mismanagement or misappropriation of the trust funds, and no such misconduct as to make the suit necessary to protect the interests of the appellees. The appellant had the right to defend herself against the attempt to oust her from the control of the common property, and under all the circumstances surrounding the parties, the costs should have been directed to be paid out of the trust estate.

And now, to wit, 15th January 1877, it is ordered and adjudged that so much of the decree of the Court of Common Pleas as discharged the defendant, Mrs. Caroline E. Bloomer, from the management and control of the lands described in her declaration of trust in which she owned an undivided interest, and so much thereof as directed the payment of the costs before the master and in the Common Pleas, be reversed; and that the said costs be paid out of the estate belonging to the plaintiffs in the defendant’s hands. And it is further ordered and adjudged that the said defendant, Mrs. Caroline E. Bloomer, give bond in a sum to be fixed and with sureties to be approved by the said Court of Common Pleas, conditioned for the faithful discharge of her duties as trustee of the undivided half of the real estate of which she retains control, and for the faithful payment of the rents, issues, profits and proceeds of sale thereof; and that the record be remitted in order that this proceeding may be had. The residue of the decree of the Common Pleas is affirmed, and it is ordered that the costs of this appeal be paid by the appellees.