Estate of Seitzinger

32 A. 1097, 170 Pa. 500, 1895 Pa. LEXIS 1430

Opinion

Opinion by

Mr. Justice Dean,

J. C. Illig & Brother, the appellants, having a judgment against one Emma B. Hill for $1,954.85, issued an attachment execution upon it and had the writ served upon Henry A. Muhlenberg, trustee of Elizabeth Seitzinger, deceased, as garnishee. The ward of the trustee and garnishee had died on the 3d of October, 1892, at which time there was in his hands a trust fund for her benefit of $24,677.66. The defendant in the attachment execution, Mrs. Hill, a sister of Elizabeth Seitzinger and legatee under the will of their father, had an interest in this fund; to what extent, if at all, this interest was subject to seizure on an attachment execution by her creditors, was the question to be answered by the court below. The learned judge of the court, with great labor and painstaking, has, in his findings and opinion, so concisely and clearly put before us all the material points in the case, both of fact and law, that our work of review to determine whether appellants’ averments of error be well founded is comparatively light.

Elizabeth Seitzinger, the deceased ward, was a daughter of Jacob W. Seitzinger, who died on 19th of November, 1850, having made his last will the 24th of the preceding October. He left to survive him two sons,-Jacob John S. and Franklin S. Seitzinger; four daughters, Elizabeth, Margaret A., Mary A. and Emma B., now Hill, and two grandchildren, Mary A. and Jacob S. Souder. By his will, after certain specific devises and legacies, he gave to each son and daughter, except Elizabeth, shares in his residuary estate; the value of these shares being equal, two twelfths for each child, and one twelfth for each of the grandchildren. Elizabeth, whose share produced the fund in litigation, was of weak mind, and the father after adverting to this affliction, directs that his residuary estate, real and personal, shall stand charged with an annual payment to her trustee for her benefit of seven hundred dollars during the life of his wife, and after the death of the wife, with an annual payment not exceeding fifteen hundred dollars during the life of Elizabeth. To provide for prompt payment of this annuity the fund for distribution was set apart for her and came into the hands of her trustee, who applied the income during the life of Elizabeth for her benefit. The will of the fathér further provided that at the death of Elizabeth the fund thus set apart should fall into and form part of his residuary estate. It further directed that in the event of the death of either of his children without issue the share of such child should go to the increase of the shares of his other children. As before noticed, the shares of each child, except Elizabeth, in the residuary estate was two twelfths, and of each of the two grandchildren, one twelfth. The shares of the daughters, except Elizabeth, were bequeathed and devised upon trust for their sole and separate use during life, they to receive the income and profit thereof and not to be subject to seizure for their own debts or for those of their husbands; at death of either daughter, to go to such of her issue living and in such proportions as she might by will appoint, and in default of appointment, in trust for the use of such persons as would have been entitled to the same had she died the absolute owner thereof.

Emma B. Hill, the daughter of testator, is entitled to two elevenths of the fund in her own right; further she has a claim on the fund through another sister, Mary Agnes Seitzinger. This sister died unmarried on the 16th of June, 1867, leaving two children. By will she devised all her estate to one Dr. William Wetherill. As the court has properly interpreted the will of her father, she had no power of appointment by will so far as concerned her estate under that will except to appoint, as to part thereof, a surviving husband, or to lawful issue ; in default of such appointment, then it was to go to such person or persons and for such estate or estates as would then be entitled to the same if she had then died the absolute owner of the same, a widow intestate. As noticed, the father’s will is dated the 24th of October, 1860, and he died the following November. The children being illegitimate, they had no capacity to inherit. But long before the mother’s death the act of 1855 was passed, declaring that illegitimate children and their mother, respectively, should have capacity to take and inherit both real and personal estate from each other. That this act, from the date of its passage, removed the disability of these children, the learned judge of the court below in his opinion has clearly shown from the authority of Opdyke’s Appeal, 49 Pa. 378, and Bunglers’ Estate, 1 Woodward’s Decisions, 329; and further the fact of'the inheritable capacity having been conferred by statute after the estate vested in the mother under the ancestor’s will, does not prejudice the right of the illegitimate children to take from her. See Miller’s Appeal, 52 Pa. 116, which has been followed in subsequent cases by this court. The mother, then, having no power to will her estate to Dr. Wetherill, and not having willed it to issue or surviving husband, died intestate, and it went to her children as if she had been the absolute owner thereof, for they, under the terms of their grandfather’s will, were “ such person or persons ” as, in such event, were entitled to the same.

But these two children for a valuable consideration, by deed on the 19th of November, 1874, sold and transferred all their right and claim in the estate of their mother to the surviving legatees, not including Elizabeth,-of their grandfather; therefore by this instrument there passed to Mrs. Hill a fractional interest in her sister, Mary A. Seitzinger’s share, of the money value of $794.84.

There was still another accretion to Mrs. Hill’s share. Richard Boone, the acting executor and trustee, appointed by the will, on May 1, 1857, resigned his trust, and Jacob J. S. Seifczinger, a son and legatee, who had then come of age, succeeded him, and gave bond in $20,000. In July, 1873, he filed his account, which on audit showed a balance against him of over $25,000. He paid none of this over to his co-legatees but converted the whole to his own use; $20,000, the amount of the bond, was recovered from his sureties, leaving still an unpaid balance including interest and costs of $9,411.51. His assignee in bankruptcy made claim to Jacob’s share of the fund on the ground that his assignor as a beneficiaiy of the residuary estate, under the will of his father, was entitled to his full share. The court below, as his entire share in the fund did not equal his devastavit, held, that he was not entitled to participate until he had made restitution of the money wrongfully withheld from his co-legatees, and appropriated his share, $3,576.83, to the others to make good in part his waste. Mrs. Hill’s share in her own right of this item was $814.37. She also had her share in Jacob’s share of Mary’s share by reason of the transfer of the two children, which was also appropriated on account of the devastavit, $227.10. She was also entitled to $161.45, as one of the assignees of Mary’s children, in their share of Jacob’s share. What portion of the fund was subject to attachment by Mrs. Hill’s creditors depended on the nature of her right or title to it. As to the $3,576.83, her own share under her father’s will, that, clearly, was impressed with a trust for her separate use, the income to be paid to her during her life; with a positive inhibition against pledging, parting with or anticipating the income ; then a power of appointment by will in the beneficiary,' and in default a bequest over. True, Mrs. Hill, at the date of the will, was a child, and the trust, if for protection during coverture alone, would not have been effective. But it went much further, it vested the legal title in the trustee and im ■posed upon him active duties; besides, part of the manifest intention was to protect the principal for her issue, and in default of issue increased by that much the shares of his other children. As is aptly said by the court below, it is in the nature of a spendthrift trust for a married or unmarried woman; the principal is guarded against waste either by herself or a possible husband. As such, the intention of the testator must be carried into effect, and the $3,576.83 held not subject to seizure by attachment even for her own debts. We can add nothing of weight on this question, either by reason or authority, to the opinion of the learned judge of the court below.

The share of Mrs. Hill in the share of her brother Jacob, amounting to $726.52, was awarded to her under the trusts in the will. The sum which Jacob had appropriated to his own use was clearly protected by the trust from creditors. The court having before it the fund, the parties and the facts, in the administration of equity substituted Jacob’s share for that out of which he had wronged his sister. If the money withheld was not attachable, as it clearly was not, that which took its place was also protected; under the authority of the will, Jacob had received his sister’s money; by the authority of the will, when opportunity presented, the court restored it to her, because in equity it was hers; the identity of the money, by the misappropriation of it, was gone, but as soon as restored, its identity as a trust fund was unaffected; it was still the fund which the testator directed “should not be subject to execution, attachment, sequestration, or adversary proceedings of any sort for her own debts or for any debts or liabilities whatsoever.” Its character was in no way different from that of the $20,000, which had been recovered by suit from the sureties of defaulting trustee and then appropriated to the same beneficiaries as provided by the will.

The fifth assignment of error is to the award of $726.52 to the administrator of Mary Agnes Seitzinger. The reason for this award, as stated by the court, is to equalize her share with those of the others affected by the devastavit. The accrued income of her share up to the date of her death, to which date her personal representative was entitled to receive it, had not been awarded her from the proceeds of the bond of the trustee equally with the other'distributees; to promote such equality, the court, from this portion of the restored money realized from Jacob’s share in Elizabeth’s share, awards Mary’s share to her administrator, to wit, $726.52. The money was income due and payable to Mary Agnes during her lifetime by her brother. If it had been actually received and in her possession at her death, it would unquestionably have passed to her representative ; the fact that he wrongfully retained it in his possession affected not the nature of her right to it, and it is in accord with sound legal principles to treat, in distribution, that as absolutely her own, when there was nothing but the unwarranted physical possession of it by her brother to indicate otherwise. In view of the reasons given by the court below, we cannot say such award was not justified, and the assignment is overruled.

This leaves as passing by the will of Jacob Seitzinger, and protected by the trusts therein created, Emma B. Hill’s own share in the fund set apart for Elizabeth, $3,576.81; her own share in Jacob’s share, withheld from him to make good his devastavit, $814.37. The balance of the fund awarded to her, and to which the trust has no application, $1,229.52, is subject to the lien of the attachment and goes to her creditors, these appellants.

This is the conclusion of the court below, and in pursuance of it distribution was made accordingly. We fail, after a thorough examination, to discover any error of fact or law in the decree. Therefore it is affirmed, and the appeal is dismissed at costs of appellants.