Delbert's Appeal

83 Pa. 462

• Court: Supreme Court of Pennsylvania
• Decided: March 28, 1877
• Docket: No. 1
• Status: Published

Opinion

Mr. Justice Paxson

delivered the opinion of the court, March 28th 1877.

The only error assigned upon this record is to the decree of the court below, revoking the appointment of the Fidelity Insurance, Trust and Safe Deposit Company as trustees under the will of Frederick Gaul, Sr., deceased, in place of William and Frederick Gaul, deceased, trustees. Said appointment was revoked upon the ground that the trusts were mere dry trusts requiring no personal attention, nor the performance of any active duty on the part of the trustee.

We think it is very clear that under the will of Frederick Gaul, senior, deceased, the gifts to the daughters are expressly restricted to their natural lives, with a contingent remainder in fee to the children of each living at the time of her death, and to the issue of such as may then be deceased, leaving such issue. Here is certainly a duty on the part of the trustee to preserve the corpus of the estate for those entitled in remainder. There were also active duties to perform. By the terms of the will the property is directed to “ remain in the care and management of the executors, and the survivor of them, for and during the natural lives of the daughters, respectively, to receive the rents and to continue at interest and invest the personal estate in some of the personal stocks or securities, producing an interest or dividend,' and to receive the interest and dividend, and from time to time to pay over the same to the daughters to whom the same may belong, into their own hands, for thqir sole and separate use, without being subject or liable to the debts or their husbands,” &c. The learned judge of the Orphans’ Court evidently regarded this clause of the will as creating a separate use trust. The concluding sentence of the paragraph cited evidently does create such a trust. But an examination of the entire will shows that the separate use was not the main or controlling feature of the trust. It was but an incident. Had it been a separate use trust and nothing more, it would undoubtedly fall under the authority of Dodson v. Ball, 10 P. F. Smith 494; Yarnall’s Appeal, 20 Id. 339; Ogden’s Appeal, Id. 507. But where an active trust is created, and the intent appears to be that it shall continue for a life or other limited period, without regard to coverture, then the trust is sustained: Bacon’s Appeal, 7 P. F. Smith 504; Earp’s Appeal, 25 Id. 125; Ashhurst’s Appeal, 27 P. F. Smith 464; Ash’s Appeal, 30 Id. 497. We think the trust in this estate falls ivithin the latter class, and that a trustee is necessary to carry out the purposes contemplated by the testator. It will be the duty of the Orphans’ Court to make such an appointment.

The decree is reversed, and a procedendo awarded; the costs of this appeal to be paid by the appellees.