Varner's Appeal

80 Pa. 140, 1875 Pa. LEXIS 232

• Court: Supreme Court of Pennsylvania
• Decided: November 18, 1875
• Status: Published

Opinion

Judgment was entered in the Supreme Court

Per Curiam.

It is very clear that the will of Thomas McClurg gives to Mrs. Yarner an estate for her sole and separate use, in the residuary estate, free from any control over 'or use of the same by her husband. Her husband being alive, this created a trust in equity to preserve the estate for her separate use, so that its control could not be exercised by her husband. Though no trustee was named, equity will raise one, in order to effectuate the intention of the testator. Hence, it was the duty of the Orphans’ Court, which proceeds according to the principles of equity, to preserve the use by providing that the estate should not be paid into her own hands, and thereby enable her to dispose of it contrary to the trust.

Decree affirmed with costs and appeal dismissed.