3 allowed to deal with deal with it as to third persons; (b) the trustee was directed to transfer the property to the cestui que trust. In some cases the nature of the property did not appear from the report, but was generally a residue, and probably consisted of both kinds: (a) the cestui que trust was permitted to deal with the property as to third persons; (b) a decree was entered in her favor in proceedings to have the legal title transferred." Circumstances Must Exist at the Time the Gift is Made 572. The circumstances requisite to the taking effect of the sole and separate use clause must exist at the time the gift is made. The application of this principle is so plain when the settlement is made by the woman herself, or when made by a third person by deed, that no question as to these cases has ever arisen. Suppose the gift is * (1) After death of husband: Hamersley v. Smith, 4 Whart. 126 (1839). (2) After divorce: no case found. (3) Because not married or in contemplation of marriage at the time of the creation of the trust: no case found. (1) After death of husband: Harrison v. Brolaskey, 20 Pa. 299 (1853); Bush's App., 33 Pa. 85 (1859); Hepburn's App., 65 Pa. 468 (1870); Pickering v. Coates, 10 Phila. 65 (1873). (2) After divorce: Koenig's App., 57 Pa. 352 (1868), doubtful if sole and separate use was created in this case; Simonds' Est., 201 Pa. 413 (1902); Lee's Est., 207 Pa. 218 (1903). (3) Because not married or in contemplation of marriage at the time of the creation of the trust: Harris' Est., 3 Phila. 326 (1859); Ogden's App., 70 Pa. 501 (1872); Pickering v. Coates, 10 Phila. 65 (1873); Gamble's Est., 13 Phila. 198 (1878); Hughes' Est., 7 W. N. C., 539 (1879); Snyder's App., 92 Pa. 504 (1880); Quin's Est., 144 Pa. 444 (1891). Because engagement to marry was broken off: Cozens' Est., 29 Pa. C. C. R. 462 (1904), s. c. 13 D. R. 49. Penrose, J., said, "The trust for separate use became inoperative in consequence of the termination of the engagement to marry, in (4) made by will by a third percontemplation of which it was made." The remarks were dicta, and the learned judge leaves it open to doubt as to whether he thought of the engagement to marry or the marriage as being in contemplation. 5 (1) After death of husband: no case found. (2) After divorce: no case found. (3) Because not married or in contemplation of marriage at the time of the creation of the trust: Howard v. Law, 15 Phila. 341 (1882). (1) After the death of the husband: Williams' App., 2nd will, 83 Pa. 377 (1877). (2) After divorce: Kelly's Est., 16 Phila. 273 (1883), report not clear, cannot be told what the case was. (3) Because not married or in contemplation of marriage at the time of the creation of the trust: Megargee v. Naglee, 64 Pa. 216 (1870); Yarnall's App., 70 Pa. 335 (1872); Biddle's Est., 15 Pa. C. C. 401 (1894), report obscure. When her interest is for life only she cannot have a conveyance of the legal title or deal with the property as owner, even if no valid sole and separate use, as she is not entitled to the principal in any event; see $160, ante. son and the circumstances do not exist at the date of the will but occur afterward, and before the death of the testator. The correct principle, it is submitted, is that the validity of the clause is to be tested by the circumstances existing when the settlement will take effect, that is, at the death of the testator. This appears to have been the law until 1883. The Supreme Court in that year laid down a new rule, and it is now the law that the requisite circumstances must exist at the date of the will." Preliminary Discussion as to Contemplation by the Donor 573. Where the gift is made by a third party, the marriage must be in contemplation of the donor at the time of the creation of the trust. This doctrine has very little foundation in reason, and seems to have been assumed as the law without any discussion. In the cases occurring prior to 1867, it was said that the cestui que trust must be married or in contemplation of marriage, but no case has been found prior to that date in which it was decided that the contemplation meant contemplation by the donor when the settlement was made by a third person. The history of the doctrine is illustrated by the following cases. McBride v. Smyth 8 574. In McBride v. Smyth the testator died in 1847; his will was dated 1846; the cestui que trust was nineteen years old at the time of his death, and the date of her marriage does not appear in the report. It was held, with very little discussion, that there was no sole and separate use created. 7 In Neale's App., 104 Pa. 214 (1883), the court said that the Act of June 4, 1879, P. L. 88, providing that the will should speak as of the testator's death, does not give vitality to a previous abortive attempt to tie up an estate in a manner wholly beyond the power of the testator to do. It is submitted, however, that this is a misapprehension of the principle involved. It is not a question of power, but a question of whether the circumstances obstruct the exercise of the power, and that question is to be determined as Strong, J., said, "it is here too well established to be disturbed by anything else than a legislative enactment, that a separate use for a woman cannot be created unless she is covert or unless in immediate contemplation of her marriage." The learned judge does not say anything about contemplation by the donor and the two cases he cites contain no reference to the doctrine. Wells v. McCall 575. In Wells v. McCall 10 the testator republished his will in 1864 and died in 1868. The beneficiary married one month later. On a bill for partition subsequently filed by her against the trustees and the other cestui que trust under the will, the trustees set up in their answer that the testator knew of the proposed marriage, which was postponed because the cestui que trust did not want to leave him; that she was actually engaged at the date of the will, and that the provisions of the trust were made in contemplation of the marriage. The bill was heard at nisi prius on bill and answer by Williams, J., who dismissed the bill, which decree was affirmed by the Supreme Court on appeal. The court said, in an opinion by Agnew, J., which was necessary for the decision of the case, that the contemplated marriage need not appear in the instrument creating the trust. The learned judge, however, delivered himself of the following dictum: "The creation of the trust constitutes the evidence of the fact being in the contemplation of the donor or devisor, and when this is followed within a reasonable time by consummation of the marriage, it concludes the proof."'11 Springer v. Arundel 576. In Springer v. Arundel1 the will was dated twentythree days before the death of the testatrix, and the cestui que trust married on the third day after the testatrix's death. The case arose on an action of ejectment by the trustees under 9 At p. 250. 10 64 Pa. 207 (1870). 11 At p. 215; it is worthy of comment that the learned judge drew his inferences as to the necessity of the marriage appearing on the face of the instrument creating the trust from cases where the settlement was by the woman herself on the eve of an intended marriage. The learned judge also said, at p. 214, that a contemplated marriage discloses itself. An actual marriage does, but a contemplated marriage is a matter frequently known only to the contracting parties, and can hardly be said to disclose itself. See remarks of Penrose, J., on this case in Hildeburn's Est., 8 Pa. C. C. 369 at 373 (1890). 1 64 Pa. 218 (1870). the will, against one claiming under a deed executed by the cestui que trust and her husband. Held, that the deed was void, as the cestui que trust had only a life estate, and also because the trust was a sole and separate use. As to this point, Agnew, J., said by way of dictum: "As remarked in Wells v. McCall the creation of the trust constitutes the evidence of the fact of the marriage being in the contemplation of the devisor, and this being followed in so short a time by the consummation of the marriage, concludes the proof."2 Pennsylvania Law as to Contemplation by the Donor 5 577. It thus appears that the doctrine as to contemplation by the donor was not even mentioned in the case of McBride v. Smyth, that it appeared by way of dictum in Wells v. McCall, in which case the fact of the contemplation by the testator was set up in the answer, and that in the case of Springer v. Arundel the court followed the dictum in Wells v. McCall without any question or discussion, and that the doctrine has been assumed as law ever since upon the authority of these cases. If the marriage takes place soon enough after the date of the will, there is a presumption that the donor knew of the contemplated marriage. If the marriage takes place long enough after the date of the will there is no presumption that the donor knew of the contemplated marriage. The Supreme Court has never decided exactly what length of time will constitute the dividing line between the two presumptions." 2 In Eastwick's Est., 13 Phila. 350 (1880), Penrose, J., said that a limitation over in the event of death without issue indicated that the marriage of the cestui que trust was in the mind of the testatrix. As such limitations are present in almost every settlement the inference is perhaps not very strong. 354 Pa. 245 (1867); stated §574, ante. 4 64 Pa. 207 (1870); stated §575, ante. 564 Pa. 218 (1870); stated §576, ante. In the following cases the court held that the time which had elapsed from the date of the will was too long for the presumption to arise, and that there was no trust: twenty-five years, Pickering v. Coates, 10 Phila. 65 (1873); five years, House v. Spear, 1 W. N. C. 34 (1874); seven years, Ogden's App., 70 Pa. 501 (1872); contra, dictum in Page's Est., 75 Pa. 87 (1874); six years, Hetrick v. Addams, 12 W. N. C. 367 (1882); twelve years, Bevan's Est., 15 Phila. 615 (1882); eight years, Neale's App., 104 Pa. 214 (1883), c. q. t. ten years old at date of will; twenty years, Kuntzleman's Est., 136 Pa. 142 (1890), c. q. five years old at date of will. In the following cases no time was stated, and it was held that there was no trust: Bristor v. Tasker, 135, Pa. 110 (1890); dictum, in Boyd's Est., No. 1, 199 Pa. 487 (1901); Wolfinger v. Fell, 195 Pa. 12 (1900). The age, therefore, of the beneficiary, or the fact that the marriage took place before or after the death of the testator is immaterial. Objections to the Doctrine That the Donor Must Contemplate the Marriage 578. A sole and separate use is an exception to the rule forbidding restraints on alienation, and the whole object of the Supreme Court in enforcing the doctrine as to contemplation by the donor is to confine that exception within the smallest limits. What can be said in defence of a doctrine which makes the application or non-application of a principle of public policy depend on what was in the mind of a man who is now deceased, and this is what it comes to in the case of wills. The rules which have been laid down by the Supreme Court are merely artificial presumptions to assist in covering up the practical impossibility of carrying out the doctrine. Suppose a young woman is engaged to be married and is suddenly bereft of the parent to whom she is about to disclose her engagement. That parent leaves a will dated one year before his death, creating a sole and separate use for his daughter. The daughter marries six months after her father's death, and although the donor had no knowledge of the engagement, there is, under this presumption, a valid sole and separate use. Suppose, on the other hand, a young woman has disclosed her intended marriage to her father, and he dies having created a sole and separate use by will. The marriage is delayed, for one cause or another, for six or more years after the father's death. The sole and separate use is void under the presumption, and the young woman is likely to have her property swept away by the improvidence and debts of her husband, yet, in this case, the donor knew of the marriage at the time of the creation of the trust. It may be answered that these presumptions may be overthrown by evidence. The evidence is difficult to produce, and no case has been found in which it has been produced. Furthermore, what is contemplation by the donor? How far must the preliminaries between the young people have progressed before the donor can be said to be in sufficient contemplation? A keen-eyed parent may contemplate a specific marriage long before the young woman herself has awakened to the situation. Executory Trusts and Contemplation by the Donor 579. Where the settlor provides by his will that the sole and separate use shall take effect at some time in the future, is the validity of the clause to be considered with reference to |