THOMAS’S APPEAL.
Opinion by
Mr. Justice Mitchell,
It is conceded that the interest of Chas. Ingersoll Maury in his grandfather’s estate did not pass to him directly in fee on coming of age, under the devise in the latter’s will, but was changed under the proviso giving Mrs. Hutchinson the power to revoke the devise and make new appointments or trusts as to the shares of the two grandsons. The simplest way therefore of getting to the question raised in this case, is to ascertain first, what was the state of facts or circumstances existing at the death of C. I. Maury; secondly, what was Mrs. Hutchinson authorized by her father’s will to do in such contingency; and thirdlj, what had she actually done.
[547]*547First, C. I. Maury was of full age, unmarried, and without descendants. His heir and next of kin, who in the language of his grandfather’s will “would be entitled if he had died owner of the estate,” was his brother Fi’ancis. C. I. Maury left a will which was held by the learned court below to be a valid exercise of a power of appointment as to personaltjq and this adjudication not being objected to must be taken to be correct for the purpose of this appeal. None of these facts is disputed.
Secondly, Mr. Ingersoll’s will gave each of his grandsons a fee in one eighth of his estate. The two parts were to be held together in trust during the minority of the grandsons, with cross remainders in case of the death of either during minority and without issue, and remainder over if both so died, but as each arrived at twenty-one his estate was to go to him in severalty. It is important to observe that there is no indication anywhere in the will that the estates were to be joint or in common. But as the testator was somewhat advanced in years and his grandchildren infants, he gave his daughter Mrs. Hutchinson power to revoke the devises and bequests to them and to appoint' trusts for either or both, first, deferring the time for the receiving of the principal, or secondly, reducing the estate to one for life without right of anticipation or subjection to creditors, and lastly, with or without testamentary power of appointment. There is a further power of revocation and new appointment which is not material to this case. These are all the powers that are given to Mrs. Hutchinson, and while they are very large, they do not include any authority to direct the disposi tion of the estate of either grandson gfter his death. On the contrary this is expressly provided for by the testator himself in the next part of the same sentence where, after giving his daughter power to grant or withhold a testamentary power of appointment, he continues, “and with remainders to the persons who would be entitled if the child as to whose estate this power is exercised died owner of the same.” It is manifest that the testator did not intend that the estates of his grandsons should be fettered beyond their respective lives. As they were young when his will was written, and their future development and circumstances uncertain, he delegated his discretion during their infancy to his daughter, in whose judgment he had confidence. If she should not exercise this discretionary power, [548]*548each grandson on attaining his majority would come into full possession of his estate at once under the direct gift of the testator’s will. If however the time of enjoyment was deferred, or a trust created by Mrs. Hutchinson as to either, (and it is to be noted as already said that they are treated throughout both the will of Mrs. Ingersoll and the deed of Mrs. Hutchinson as separate,) then the remainder was to be to the persons who would be entitled if the child died owner of the estate. Such remainder would become effective only in case Mrs. Hutchinson withheld the power of testamentary appointment, or in case such power though given was not exercised. In either contingency the testator himself directed to whom the remainder should go. He was an experienced lawyer, and he had probably observed that while the prudence and foresight of age are a valuable protection to the young, yet the wisest can see but a little way into the future, and the attempt to guide the course of events too far ahead not infrequently causes more loss than letting the future take care of itself. Whether this was the testator’s thought or not, it is plain that he did not contemplate that his control, either direct or delegated, should continue beyond the life of each grandson.
Thirdly, Mrs. Hutchinson in the exercise of her power under the will, revoked the devise to her nephew C. I. Maury and declared a spendthrift trust for life for him, with a power of testamentary appointment in case he left no descendants surviving; and if he should leave descendants or fail to exercise his power of appointment, then remainder in the language of her father’s will to the persons who would be entitled to take if said child died owner thereof. To this declaration of trust however she added a proviso, “ that to the extent it is lawful for me to do so, and only to that extent, I direct that any share of said principal passing by virtue of said child’s decease to his brother Francis F., shall be held by said trustees upon the same trusts .... hereinafter directed by me as to the original share of said Francis F.” From what has been already said under the second head, it follows that this limitation was in excess of the power given by testator’s will. C. I. Maury having exercised his power of testamentary appointment as to his personalty only, his real estate at his death passed to his [549]*549brother Francis directly under his grandfather’s will, free of all trusts.
Decree affirmed.
MAURY'S APPEAL.
April 29, 1895:
The will of Charles Ingersoll gave his trustees very ample control over the estate committed to their charge, including power to “ sell and convey all or any part of my estate or property which they may hold under this will,” and with the consent of the cestui que trust, to “ purchase real estate and sell and convey the same.” These words shoAV his intention. The trusts he had particularly in contemplation were for his two grandsons during their minority and for three married daughters. The latter had the prospect of many jmars of life before them, and the trusts as to them at least were therefore likely to be of long duration. His intent was manifestly to commit the estate as amply as possible to the management and discretion of the trustees, and in so doing he directed that they should not be restricted to such securities as trustees may be restricted to by law, and intended that they might convert from one kind of property to another..
Mr. Ingersoll’s will also gave power to his daughter Mrs. Hutchinson to revoke the devises to his grandsons, and to declare trusts for their lives. In the exercise of this power Mrs. Hutchinson gave to the same trustees “ power to retain all investments legal or otherwise, and to invest and change investments whenever they shall think advisable without being restricted to what are known as legal securities, and to sell and convey real estate now held or hereafter acquired.” This language, as emphatically as that of her father’s will, shows Mrs. Hutchinson’s intention that the trustees under her appointment should have a power of conversion between real and personal estate. The power to sell the realty is express and the power to purchase is necessarily implied in the phrase “ hereafter acquired.”
The will of Mr.
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THOMAS’S APPEAL.
Opinion by
Mr. Justice Mitchell,
It is conceded that the interest of Chas. Ingersoll Maury in his grandfather’s estate did not pass to him directly in fee on coming of age, under the devise in the latter’s will, but was changed under the proviso giving Mrs. Hutchinson the power to revoke the devise and make new appointments or trusts as to the shares of the two grandsons. The simplest way therefore of getting to the question raised in this case, is to ascertain first, what was the state of facts or circumstances existing at the death of C. I. Maury; secondly, what was Mrs. Hutchinson authorized by her father’s will to do in such contingency; and thirdlj, what had she actually done.
[547]*547First, C. I. Maury was of full age, unmarried, and without descendants. His heir and next of kin, who in the language of his grandfather’s will “would be entitled if he had died owner of the estate,” was his brother Fi’ancis. C. I. Maury left a will which was held by the learned court below to be a valid exercise of a power of appointment as to personaltjq and this adjudication not being objected to must be taken to be correct for the purpose of this appeal. None of these facts is disputed.
Secondly, Mr. Ingersoll’s will gave each of his grandsons a fee in one eighth of his estate. The two parts were to be held together in trust during the minority of the grandsons, with cross remainders in case of the death of either during minority and without issue, and remainder over if both so died, but as each arrived at twenty-one his estate was to go to him in severalty. It is important to observe that there is no indication anywhere in the will that the estates were to be joint or in common. But as the testator was somewhat advanced in years and his grandchildren infants, he gave his daughter Mrs. Hutchinson power to revoke the devises and bequests to them and to appoint' trusts for either or both, first, deferring the time for the receiving of the principal, or secondly, reducing the estate to one for life without right of anticipation or subjection to creditors, and lastly, with or without testamentary power of appointment. There is a further power of revocation and new appointment which is not material to this case. These are all the powers that are given to Mrs. Hutchinson, and while they are very large, they do not include any authority to direct the disposi tion of the estate of either grandson gfter his death. On the contrary this is expressly provided for by the testator himself in the next part of the same sentence where, after giving his daughter power to grant or withhold a testamentary power of appointment, he continues, “and with remainders to the persons who would be entitled if the child as to whose estate this power is exercised died owner of the same.” It is manifest that the testator did not intend that the estates of his grandsons should be fettered beyond their respective lives. As they were young when his will was written, and their future development and circumstances uncertain, he delegated his discretion during their infancy to his daughter, in whose judgment he had confidence. If she should not exercise this discretionary power, [548]*548each grandson on attaining his majority would come into full possession of his estate at once under the direct gift of the testator’s will. If however the time of enjoyment was deferred, or a trust created by Mrs. Hutchinson as to either, (and it is to be noted as already said that they are treated throughout both the will of Mrs. Ingersoll and the deed of Mrs. Hutchinson as separate,) then the remainder was to be to the persons who would be entitled if the child died owner of the estate. Such remainder would become effective only in case Mrs. Hutchinson withheld the power of testamentary appointment, or in case such power though given was not exercised. In either contingency the testator himself directed to whom the remainder should go. He was an experienced lawyer, and he had probably observed that while the prudence and foresight of age are a valuable protection to the young, yet the wisest can see but a little way into the future, and the attempt to guide the course of events too far ahead not infrequently causes more loss than letting the future take care of itself. Whether this was the testator’s thought or not, it is plain that he did not contemplate that his control, either direct or delegated, should continue beyond the life of each grandson.
Thirdly, Mrs. Hutchinson in the exercise of her power under the will, revoked the devise to her nephew C. I. Maury and declared a spendthrift trust for life for him, with a power of testamentary appointment in case he left no descendants surviving; and if he should leave descendants or fail to exercise his power of appointment, then remainder in the language of her father’s will to the persons who would be entitled to take if said child died owner thereof. To this declaration of trust however she added a proviso, “ that to the extent it is lawful for me to do so, and only to that extent, I direct that any share of said principal passing by virtue of said child’s decease to his brother Francis F., shall be held by said trustees upon the same trusts .... hereinafter directed by me as to the original share of said Francis F.” From what has been already said under the second head, it follows that this limitation was in excess of the power given by testator’s will. C. I. Maury having exercised his power of testamentary appointment as to his personalty only, his real estate at his death passed to his [549]*549brother Francis directly under his grandfather’s will, free of all trusts.
Decree affirmed.
MAURY'S APPEAL.
April 29, 1895:
The will of Charles Ingersoll gave his trustees very ample control over the estate committed to their charge, including power to “ sell and convey all or any part of my estate or property which they may hold under this will,” and with the consent of the cestui que trust, to “ purchase real estate and sell and convey the same.” These words shoAV his intention. The trusts he had particularly in contemplation were for his two grandsons during their minority and for three married daughters. The latter had the prospect of many jmars of life before them, and the trusts as to them at least were therefore likely to be of long duration. His intent was manifestly to commit the estate as amply as possible to the management and discretion of the trustees, and in so doing he directed that they should not be restricted to such securities as trustees may be restricted to by law, and intended that they might convert from one kind of property to another..
Mr. Ingersoll’s will also gave power to his daughter Mrs. Hutchinson to revoke the devises to his grandsons, and to declare trusts for their lives. In the exercise of this power Mrs. Hutchinson gave to the same trustees “ power to retain all investments legal or otherwise, and to invest and change investments whenever they shall think advisable without being restricted to what are known as legal securities, and to sell and convey real estate now held or hereafter acquired.” This language, as emphatically as that of her father’s will, shows Mrs. Hutchinson’s intention that the trustees under her appointment should have a power of conversion between real and personal estate. The power to sell the realty is express and the power to purchase is necessarily implied in the phrase “ hereafter acquired.”
The will of Mr. Ingersoll, being concerned only with the limitations on the estates and trusts to be declared by her, does not in terms give his daughter authority to direct the trustees whom she may appoint, as to their investments. Whether it [550]*550should be implied from the large powers given for the creation of the trusts it is not necessary to decide, for whether the authority of the trustees of C. I Maury’s estate over investments be considered as arising from the terms of Mr. Ingersoll’s will, or from the language of Mrs. Hutchinson’s deed, in either case, their powers are derived from the testator, and are ample to change investments from personalty to realty, and vice versa, and whatever they did in this respect worked an actual conversion as effectually as if it had been done by the testator himself.
This result not only follows from the intention of the testator and the transmission of powers from him to the trustees, but is also in accord with the decisions. In Wharton v. Shaw, 3 W. & S. 124, the rule was thus expressed by Kennedjr, J., “ the estate though real at the time of the making of the will, as also at the death of the testator, was certainly changed after-wards by the sale made of it, into personal estate. And being so changed by an authority given by the testator himself in his will to his executors, it can no longer be considered real estate, unless from his will it clearly appears to have been his intention that the money which might arise from the sale should be considered real estate, or be again invested in the pui’chase of other real estate.” See also Lackey’s Estate, 149 Pa. 7.
The conversions therefore made by the trustees from real to personal estate, or vice versa, in pursuance of their powers, during the life of C. I. Maury, were actual and legal, and upon his death such property passed according to its actual status at that time.
The decree is directed to be modified in accordance with this opinion.
LINDENBERGER'S APPEAL.
The first assignment of error, that the learned court below erred in not finding that the whole estate over which O. I. Maury had a power of appointment passed by his will, rests on the argument that by the will of Charles Ingersoll or the deed of declaration of trusts by Mrs. Hutchinson, one or both, the whole share of C. I. Maury in his grandfather’s estate had become personalty. There is nothing in either of these papers which will sustain such contention.
[551]*551The estate of Mr. Ingersoll at his death consisted of both realty and personalty, and his will not only treats it as such, but contemplates that it shall continue in both forms as he left it, unless changed by the trustees under the powers given them for that purpose. The will gives and devises all his “estate, real and personal,” on an active and continuing trust, with authority to “ make partition,” to buy and sell real estate, and “ convey ” the same. The testator was a lawyer and must be presumed to have used these terms in their proper legal sense, as applicable to real estate. There is nowhere any direction to sell, but only a discretionary power to do so. Nothing in the will indicates an equitable conversion either by operation of law or by the intention of the testator.
Nor is there any such effect due to the deed of appointment of trusts by Mrs. Hutchinson, even supposing she had authority to direct a conversion. The estate as to which she appointed the trusts under the power in her father’s will consisted of both realtjr and personalty, and her intent was to pass it under the trust just as it was, with large discretionary powers of management and conversion. These powers have been discussed in Maury’s Appeal, opinion filed herewith, and need not be enlarged upon here.
The other assignment of error is to the refusal of the learned court below to treat the money representing the principal of a ground rent paid off, as personalty. The subject of the conversion of the estate of C. I. Maury from realty to personalty or vice versa, by the trustees, has been considered in Maury’s Appeal, supra, and all we need do here is to point out the distinction which produces different results in the two cases. It was there held that a sale and conversion by executors or trustees, under an authority in the will, even though merely discretionary, was equivalent to a sale by the testator, and worked an actual and legal conversion, unless the will showed the testator’s intention to the contrary. In the present case the element of the trustees’ discretion and intention is wanting. The ground rent was paid off not by choice of the trustees but by the ground tenant by virtue of his legal right. The change therefore was not the act of the testator, or his representatives. The act of a stranger cannot change the property’s heritable qualities. It was real estate in the testator’s hands and passed [552]*552as such by his will. There was no conversion by the exercise of the powers of the trustees, and the money came into their hands as trustees for C. I. Maury with the quality of real estate as the rent had been which it represented. It remained so until the time of his death, and was real estate for the purposes of his will. This however was the first devolution, and ended its temporary quality as real estate. When it passes under the will of his grandfather to Francis F. Maury (see Thomas’s Appeal, opinion filed herewith) it resumes in his hands its normal character of money.
The principle of this case, the controlling effect of the absence of the trustees’ exercise of their delegated power, distin guishes it from the line of cases of which Wharton v. Shaw, 3 W. & S. 124, and Lackey’s Estate, 149 Pa. 7, are types, followed in Maury’s Appeal, supra. Though we have not reached it by the same process, we are of opinion that the result arrived at by the learned court below was right.
Decree affirmed at the costs of the appellant.