Summary
APPEAL BY PLAINTIEES EBOM THE COUBT OE COMMON PLEAS NO. 2 OE ALLEGHENY COUNTY.
No. 229 October Term 1889, Sup. Ct.; court below, No. 461 April Term 1887, O. P. No. 2.
On April 2, 1887, a summons was served in an action of ejectment brought by Eliza Carson and others against Adam Eubs and others, to recover tbe undivided ten elevenths of three lots of ground in the city of Allegheny. Issue.
At tbe trial on December 14, 1888, the following facts were shown:
On July 20, 1858, Stewart Hamilton became invested with the title in fee-simple to tbe whole of the property in controversy. On January 18,1867, Stewart Hamilton, together with his wife, Isabella, executed and delivered to their son, James Hamilton, a deed whereby, for tbe expressed consideration of “ one dollar and natural love and affection and better maintenance of the parties for whose use this deed is made in trust,” etc., they conveyed said property to Mm, his heirs and assigns, “ in trust, nevertheless, for the use of the said Isabella Hamilton, wife of the said Stewart Hamilton, during ber natural life, and at her decease then to her heirs in fee, share and share alike, and in tbe meantime to allow and permit her to receive to her own rise the rents, issues thereof, subject to the taxes and the costs of executing this said trust.”
On October 80, 1867, James Hamilton made a deed, designating himself as “ trustee of Isabella Hamilton and her heirs,” and purporting, in consideration of one dollar, to reconvey the property to Stewart Hamilton and Ms heirs. A part of the property, on February 25, 1868, was conveyed by Stewart Hamilton and Isabella, his wife, for the consideration of $3,000, tb James Hamilton, who afterwards conveyed. the same to the defendant, Adam Fuhs. The remainder of it was sold and conveyed by Stewart and Isabella Hamilton to Adam Fuhs by two deeds, dated respectively in 1869 and 1874. Fuhs took possession of the several parcels thus purchased by him and made valuable improvements on each of them.
Isabella Hamilton died July 8, 1885, intestate, and leaving to survive her her husband, Stewart Hamilton, and ten children and one grandchild as her heirs at law. All of said heirs except the oldest son, James Hamilton, named above, were joined as plaintiffs in this action. The surviving husband, Stewart Hamilton, was still living at the time of the trial.
At the close of the testimony the court, White, J., instructed the jury to find for the plaintiff for the undivided ten elevenths of the property described in the writ, subject to the opinion of the court on the question of law reserved, to wit: Whether, on the deeds put in evidence, it being admitted that Stewart Hamilton, the husband of Isabella ’ Hamilton, is still living, the plaintiffs are entitled to recover ?
On February 2, 1889, the reserved question having been argued, the following opinion was filed, White, J.:
The plaintiffs are children of Mrs. Isabella Hamilton, deceased, who was wife of Stewart Hamilton, and claim under a deed of trust executed by Stewart Hamilton and wife to their son James Hamilton, dated January 18, 1867, for three lots of ground in Allegheny City. The deed is to James Hamilton, his heirs and assigns, in fee-simple, with covenant of general warranty, “ in trust for the uses hereafter mentioned,” in consideration of “one dollar and natural love and affection and better maintenance of the parties for whose use this deed is made in trust,” etc. The trust is in these words: “ In trust nevertheless for the use of the said Isabella Hamilton, during her natural life, and at her decease then to her heirs in fee, share and share alike, and in the meantime to allow and permit her to receive to her own use the rents, issues thereof, subject to the taxes and costs of executing this said trust.”
Nine months thereafter, October 30,1867, James Hamilton conveyed back the premises to Stewart Hamilton, describing himself as “ Trustee of Isabella Hamilton, and her heirs,” in consideration of one dollar, but making no reference to the trust deed, or his title, and conveying in the usual form, as if the property was his own, with general warranty, signing his name simply, James Hamilton. Stewart Hamilton and Isabella his wife, subsequently, by deeds dated February 25,1868, and January 12,1869, conveyed two of the lots to James Hamilton, who conveyed to Adam Fuhs, and then by deed of April 30, 1874, Stewart Hamilton and Isabella his wife, conveyed the remainder to Adam Fuhs, who thus claims title to the whole. In none of their conveyances is there any reference to the trust deed from Stewart Hamilton and James Hamilton. Isabella Hamilton died July 8, 1885, leaving ten children, and her husband, Stewart Hamilton, who is still living.
The question of law reserved is, what title did Isabella Hamilton take by the trust deed ? If she took merely a life estate, the plaintiffs are entitled to recover; if a fee, either under the rule in Shelley’s Case, or by virtue of the statute of uses, they are not.
I think no question of estoppel can be raised against the plaintiffs during the life of their mother. All the deeds were duly recorded before Adam Fuhs bought. The trust deed Avas directly in the line of his title, and he had constructive notice of it. He paid his purchase money and made improvements at his own risk.
The rule in Shelley’s Case is firmly established as a law of this state. While it is difficult to reconcile some of the decisions, the rule itself has never been denied, and no avowed effort made to defeat or evade it. The rule briefly stated is this : When by deed or will an estate in land is given to one for life, and at his death the remainder to his heirs in fee, the estate of the life-tenants is enlarged to a fee ; the two estates are merged in one, and the first taker takes the whole.
The true test in the application of the rule is, did the grantor or donor intend that the remaindermen should take as heirs of the life-tenant? “ The thing to be sought for is not the persons who are directed to take the remainder, but the character in which the donor intended they should take: ” Guthrie’s App., 37 Pa. 12; nor the intention that the first taker should have only a life estate; for that intention must be overthrown, if apt words are used to bring the case within the rule. The words “ heirs ” may be limited or modified by other unequivocal expressions in the deed or will; and other words than that of “ heirs ” may have the effect of bringing the case within the rule. “ Any form of words sufficient tó show that the remainder is to go to those whom the law points out as the general or lineal heirs of the first taker will enlarge the estate of the life-tenant into a fee by implication : Potts’s App., 30 Pa. 170 ; McKee v. McKinley, 33 Pa. 93; Dodson v. Ball, 60 Pa. 493; Yarnall’s App., 70 Pa. 341.
If the deed we are considering had been directly to Isabella Hamilton, “ during her natural life and at her death then to her heirs in fee, share and share alike,” there could be no doubt she would have taken a fee. The added words, “ share and share alike ” are not sufficient to take it out of the operation of the rule: Physick’s App., 50 Pa. 136; Ogden’s App., 70 Pa. 501. But the rule in Shelley’s Case does not apply, unless both estates, for life and in remainder, are of the same quality, both legal or both equitable. Here the legal estate -under the trust deed, is in the trustee, and Isabella Hamilton had only an equitable life estate. So had the remaindermen; but under the statute of uses, it became an executed trust as to them, and they took the legal estate in remainder, if the first taker had only a life estate.
Was it a dry or executed trust, also, as to her, so that she took the legal estate under the statute of uses ? A dry, naked trust, where no duties are to be performed by the trustee, is a passive trust, and as a general rule, is executed by the statute. Active trusts where important duties are confided to the trustee, such as renting and managing the estate, investing money, distributing the proceeds, etc., are not within the operation of the statute. Others, not strictly active but passive trusts, will be saved where, (a) it is necessary for the protection of a married woman; (5) for the protection of a spendthrift child; (e) to support contingent remainders; (fl) or to serve some other useful and lawful purpose. As the trustee had no duties to perform under this trust, it falls under the second class, passive trusts. The only ground for contending that it is saved from the operation of the statute is, that it was for the protection of a married woman.
Mrs. Isabella Hamilton was tlie beneficiary, and the only one intended to be provided for by tlie deed of trust. Although the consideration is stated as, “one dollar and natural love and affection and better maintenance of the parties for whose use this deed is made in trust,” yet the only person mentioned as interested in the trust, or whose maintenance is provided for, is Isabella Hamilton. The trustee is to “ allow and permit her to receive to her own use the rents, issues thereof, subject to the taxes and cost of executing this said trust.”
The object of creating a trust for a married woman is to save the property from the debts or control of her husband. Trusts for this purpose, or for one in immediate contemplation of marriage, will be sustained. “ When an active trust is created, to give effect to a well defined purpose of a testator in reference to his family, the trust must be sustained whether the cestui que trust is sui juris or not: ” Barnett’s App., 46 Pa. 392; Earp’s App., 75 Pa. 119. But even an active trust ceases when there is no longer any purpose to serve by keeping it alive. If the trust is simply for the benefit of a married woman, or one in contemplation of marriage, it falls when she becomes discovert, and is not revived by a subsequent marriage: Bush’s App., 33 Pa. 85; Earp’s App., supra. Dodson v. Ball, 60 Pa. 492, is where a single woman conveyed land to a trustee in trust to permit her to occupy, manage and rent her premises and take the income for her sole and separate use for life and upon her decease to convey the same to such person as she might appoint, or, in default of a will, to such persons as would be entitled under the intestate laws, etc. She afterward married and her husband died. By bill she asked for reconveyance. It was held an executed trust and that she was entitled to reconveyance. The opinion of the court concludes : “ The trust being passive, and the trustees not being needed to protect any other interest, Mrs. Dodson being sui juris and competent to exercise any power which had been vested in the trustees, the ulterior trust not being intended to protect any special interests, but being exactly commensurate with her own power and estate as absolute owner, there is no proper or useful purpose to uphold the trust and it consequently fell when she became discovert.” This case was not strictly a passive trust, for there.were certain duties to be performed by the trustees. But it fell with discoverture.
Trusts for the sole and separate use of married women have been sustained in order to effectuate the object of the trusts; that is, save the property from the control or debts of their husbands. When the husband dies, the trust falls because there is no longer any necessity for it. Our married woman’s act of 1848 secures to married women the entire control and management of their separate estate and protects it from the debts and liabilities of their husbands. It accomplished all that can be accomplished by a trust for that purpose. Hence, such a trust is no longer of any necessity or practical advantage, and should fall, or be considered an executed trust, as in cases of discoverture. The trust deed in this case was executed in 1867, nineteen years after the passage of the act of 1848. It is, as we have seen, solely for the benefit of Mrs. Isabella Hamilton, then a married woman. If the title had been made directly to her she would have taken the property entirely free from the control, debts and liabilities of her husband. The trustee was simply the depository of the legal title, with no duties whatever to perform. It was a dry, naked trust. Mrs. Hamilton was to receive the rents and issues, subject to taxes and expenses, during her natural life, and at her death, then the property to go to her heirs. As there was no useful purpose-to be served by the trust, it was executed by the statute of uses and fell still-born at its birth.
The trustees had no duty to perform during her life, or at her death. The trustee was not required to convey. The property went to the heirs of Mrs. Hamilton by virtue of the trustee’s deed itself. .Both estates, for life and in remainder, being legal, they merged, and Mrs. Hamilton took the feei, under the rule in Shelley’s Case. It follows that Mrs. Hamilton and her husband could convey the fee. They might have done that, perhaps, without a reconveyance by the trustee. But after such reconveyance, and deeds for the fee-simple duly executed by Mrs. Hamilton and her husband for the whole property, her children have no claim or interest in the property.
And now, January 26, 1889, the question of law reserved is decided in favor of defendants, and it is ordered that judgment be entered in favor of defendants, non obstante veredicto.8
Judgment having been entered accordingly, the plaintiffs took this appeal, assigning the order entering said judgment as error.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
