The opinion of the court was delivered, March 26th 1866, by
Strong, J.
This case was heard in the court below on bill, answer, replication and proofs, and a decree was entered that partition be made between the parties according to their respective interests in the bill mentioned and described. From this decree an appeal has been taken, and several reasons have been urged for its reversal. Not one of them, however, has any substance in it.
The interests of the litigants are all derived from John Naglee, and their rights are to be determined by the directions of his will. By that he gave the subject of the present controversy, the residue of his estate, both real and personal, not previously disposed of, one-half to three trustees in trust for his three daughters, one-[158]*158third of the said one-half in trust for each, and the remaining one-half he gave to three other trustees in trust for his three sons, one-third of the said last-mentioned half in trust for each son. The will then proceeded to define the powers and duties of these trustees. In case any of them should refuse to act or die, or be incapable of acting, it authorized and empowered the surviving trustees to supply the vacancy or vacancies by the appointment of other trustees with the same power and authority to act, as if they had been originally appointed. Provision was then made for'-partition, as follows, in the language of the testator, “ At the expiration of the said five years (extended by a codicil to ten), or at any time thereafter, if, in the opinion of my trustees, it will be for the benefit and advantage of my estate, and for the interest of my said children, that the said estate be divided among my said children, I hereby authorize the same to be made, so that the share of each may be set out in severalty.” The trustees named in the will entered upon the duties of their trust, and vacancies having occurred in their number, they filled those vacancies, as authorized in the will. After the expiration of the ten years limited by the testator, they unanimously resolved, that in their opinion it was for the benefit and advantage of the estate of the testator, and for the interest of his children, that the estate should be divided among the said children, so that the share of each might be set out in severalty. As no mode of making a division had been prescribed by the testator, this bill was then filed, at the suit of the three sons; and two of the daughters resist a decree for partition.
The first reason assigned in opposition to a decree is, that the trustees appointed are hostile to the defendants, and.were appointed without their consent and against their protest. If this were fully sustained by the proofs, it would constitute no sufficient reason for denying to the plaintiffs the partition for which they pray. The founder of the trust appointed his own trustees as he had a right to do, without consulting the eestuis que trust, and he prescribed the agency by which vacancies should be filled. In regard to that he conferred upon his daughters, not even an advising power. It is immaterial, therefore, to the appointment that they were not consulted, and that they were even dissatisfied. They were, however, notified of the intended appointment, and they made no specific objections. The allegation now that the trustees appointed are hostile to any of the eestuis que trust is supported by no evidence. They disavow all hostility, and nothing in their conduct justifies the diseased suspicions of the two daughters.
The second objection against the decree of the court is, that one of the appointed trustees is incompetent. There is not even a shadow of evidence to sustain this. On the contrary, the proof, [159]*159so far as it goes, leads to the conviction that the trustee intended is eminently fit for his position.
The third objection is that a partition is not to the interest of the estate, or advantage of the children. This is also unsustained by the evidence. That it would be inadvisable to make partition now of certain other property, partition of which the testator postponed for twenty years, some witnesses testify, but there is nothing to show that it is not for the interest of the testator’s estate, as well as for that of all his children, that a division of the lands and personal property now sought to be divided should be made without longer delay. Moreover, the objection loses sight of the provisions of the will. The right of the parties, or any of them, to partition is not dependent upon an affirmative answer to the question whether the estate would be benefited by a division, or whether a division would be advantageous to the children. The testator has made the opinion of the trustees upon that subject, the first and'only test. We do not say that if the trustees acted capriciously, and in wanton disregard of the interests of the estate and of the children of the testator, if in other words, they did not exercise their discretion, but acted wholly without reason, a court of equity should not interfere. But this is no such case. The appellants have been unable to show anything that leads us to doubt the honest and judicious exercise of the discretion vested in the trustees by the will. We have, therefore, no right to substitute the opinions of witnesses, if there were any such, or even our opinion for the opinion of those to whom the testator exclusively confided the determination of the question.
The fourth objection urged is, that the opinion expressed by the trustees is not the result of a sound judgment. If by this is meant that their opinion was not the wisest that could have been found, it is quite immaterial. But if it is meant that the trustees did not bring their sound judgment to bear upon the consideration of the question before them, it is in direct conflict with the evidence. The advantages and disadvantages of a partition were under consideration for a considerable period of time. They were debated in a full meeting of the trustees, to which these appellants and all the children were invited, and the final decision was reached with a deliberation and caution that in our judgment ought to silence all complaint.
The fifth objection is, that the trustees did not view, appraise, inspect or value the real estate for the purpose of division. This would have been important if the trustees themselves had made a partition. But they had no such power. Their action could only be, as it was, preliminary. No more was committed to them than the determination of the question whether, in their opinion, it was advisable that partition should be made. To the decision of that question it was wholly unnecessary that they should make a new [160]*160and special inspection and valuation of the real estate for the purpose of division. The property had been within the trust more than ten years. During all that time the trustees had collected the rents, paid the taxes, made repairs and improvements, and even erected buildings upon it. They must, therefore, have been sufficiently informed to enable them to make up ^n intelligent opinion respecting the advantage or disadvantage of a partition.
The sixth objection urged is, that the personal estate is not liable to division under the terms of the will, and the intention is that the real estate should also remain undivided. From this we entirely dissent. Both realty and personalty were given to the trustees. The two kinds of property were blended. They formed constituents of one estate, and as one estate they were made subject to partition on a specified contingency.
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The opinion of the court was delivered, March 26th 1866, by
Strong, J.
This case was heard in the court below on bill, answer, replication and proofs, and a decree was entered that partition be made between the parties according to their respective interests in the bill mentioned and described. From this decree an appeal has been taken, and several reasons have been urged for its reversal. Not one of them, however, has any substance in it.
The interests of the litigants are all derived from John Naglee, and their rights are to be determined by the directions of his will. By that he gave the subject of the present controversy, the residue of his estate, both real and personal, not previously disposed of, one-half to three trustees in trust for his three daughters, one-[158]*158third of the said one-half in trust for each, and the remaining one-half he gave to three other trustees in trust for his three sons, one-third of the said last-mentioned half in trust for each son. The will then proceeded to define the powers and duties of these trustees. In case any of them should refuse to act or die, or be incapable of acting, it authorized and empowered the surviving trustees to supply the vacancy or vacancies by the appointment of other trustees with the same power and authority to act, as if they had been originally appointed. Provision was then made for'-partition, as follows, in the language of the testator, “ At the expiration of the said five years (extended by a codicil to ten), or at any time thereafter, if, in the opinion of my trustees, it will be for the benefit and advantage of my estate, and for the interest of my said children, that the said estate be divided among my said children, I hereby authorize the same to be made, so that the share of each may be set out in severalty.” The trustees named in the will entered upon the duties of their trust, and vacancies having occurred in their number, they filled those vacancies, as authorized in the will. After the expiration of the ten years limited by the testator, they unanimously resolved, that in their opinion it was for the benefit and advantage of the estate of the testator, and for the interest of his children, that the estate should be divided among the said children, so that the share of each might be set out in severalty. As no mode of making a division had been prescribed by the testator, this bill was then filed, at the suit of the three sons; and two of the daughters resist a decree for partition.
The first reason assigned in opposition to a decree is, that the trustees appointed are hostile to the defendants, and.were appointed without their consent and against their protest. If this were fully sustained by the proofs, it would constitute no sufficient reason for denying to the plaintiffs the partition for which they pray. The founder of the trust appointed his own trustees as he had a right to do, without consulting the eestuis que trust, and he prescribed the agency by which vacancies should be filled. In regard to that he conferred upon his daughters, not even an advising power. It is immaterial, therefore, to the appointment that they were not consulted, and that they were even dissatisfied. They were, however, notified of the intended appointment, and they made no specific objections. The allegation now that the trustees appointed are hostile to any of the eestuis que trust is supported by no evidence. They disavow all hostility, and nothing in their conduct justifies the diseased suspicions of the two daughters.
The second objection against the decree of the court is, that one of the appointed trustees is incompetent. There is not even a shadow of evidence to sustain this. On the contrary, the proof, [159]*159so far as it goes, leads to the conviction that the trustee intended is eminently fit for his position.
The third objection is that a partition is not to the interest of the estate, or advantage of the children. This is also unsustained by the evidence. That it would be inadvisable to make partition now of certain other property, partition of which the testator postponed for twenty years, some witnesses testify, but there is nothing to show that it is not for the interest of the testator’s estate, as well as for that of all his children, that a division of the lands and personal property now sought to be divided should be made without longer delay. Moreover, the objection loses sight of the provisions of the will. The right of the parties, or any of them, to partition is not dependent upon an affirmative answer to the question whether the estate would be benefited by a division, or whether a division would be advantageous to the children. The testator has made the opinion of the trustees upon that subject, the first and'only test. We do not say that if the trustees acted capriciously, and in wanton disregard of the interests of the estate and of the children of the testator, if in other words, they did not exercise their discretion, but acted wholly without reason, a court of equity should not interfere. But this is no such case. The appellants have been unable to show anything that leads us to doubt the honest and judicious exercise of the discretion vested in the trustees by the will. We have, therefore, no right to substitute the opinions of witnesses, if there were any such, or even our opinion for the opinion of those to whom the testator exclusively confided the determination of the question.
The fourth objection urged is, that the opinion expressed by the trustees is not the result of a sound judgment. If by this is meant that their opinion was not the wisest that could have been found, it is quite immaterial. But if it is meant that the trustees did not bring their sound judgment to bear upon the consideration of the question before them, it is in direct conflict with the evidence. The advantages and disadvantages of a partition were under consideration for a considerable period of time. They were debated in a full meeting of the trustees, to which these appellants and all the children were invited, and the final decision was reached with a deliberation and caution that in our judgment ought to silence all complaint.
The fifth objection is, that the trustees did not view, appraise, inspect or value the real estate for the purpose of division. This would have been important if the trustees themselves had made a partition. But they had no such power. Their action could only be, as it was, preliminary. No more was committed to them than the determination of the question whether, in their opinion, it was advisable that partition should be made. To the decision of that question it was wholly unnecessary that they should make a new [160]*160and special inspection and valuation of the real estate for the purpose of division. The property had been within the trust more than ten years. During all that time the trustees had collected the rents, paid the taxes, made repairs and improvements, and even erected buildings upon it. They must, therefore, have been sufficiently informed to enable them to make up ^n intelligent opinion respecting the advantage or disadvantage of a partition.
The sixth objection urged is, that the personal estate is not liable to division under the terms of the will, and the intention is that the real estate should also remain undivided. From this we entirely dissent. Both realty and personalty were given to the trustees. The two kinds of property were blended. They formed constituents of one estate, and as one estate they were made subject to partition on a specified contingency. The testator’s intention is as clear as language can make it, that division of both may be made, if, in the opinion of his trustees, it is for the benefit and advantage of his estate, and for the interests of his children.
The seventh objection is, that the answer of the defendants is wholly uneontradicted by the evidence, and must be taken as admitted. It is enough for this that the replication puts in issue the averments of the answer, and throws upon the defendants the burden of sustaining them. In assuming this burden they have failed to substantiate anything that interferes with the complainants’ equitable right to a partition.
The last objection urged is, that the bill is multifarious, because it seeks partition of both real and personal estate. The objection overlooks the fact already noticed, that by the will of Mr. Naglee both the realty and personalty were united in the same trust, and directed to be held together. The subject of the bill is therefore one, though composed of different parts. It is the estate given to the trustees, to be treated as one fund, and contemplated by the testator to be distributed in one partition.
This disposes of all the objections urged by the appellants, and vindicates the decree of the court below'. We add only that the effect of the partition upon the trusts created by Mr. Naglee’s will is not before us. The decree does not relate to any of the trusts. It neither affirms them, nor strikes them down. It matters not to the present case whether the titles of the parties are legal or equitable. That has no bearing upon the complainants’ right to partition. Whether all the trusts continue in full life or not, can be determined only in another proceeding.
The decree of the Court of Common Pleas is affirmed at the costs of the appellants.