APPENDIX

794. The Appendix contains a

1

discussion of the cases reported in the Supreme Court while the work was going through the press, and brings the citations down to 224 Pa., p. 416. Some of the cases were noticed in an examination of the advance reports, and are referred to in the previous part of the work. Upon a second examination of the bound volumes, several other cases were discovered, to which the attention of the learned reader will be directed.

Walker's Estate

2

795. In Walker's Estate, the testator devised certain property to A., with a provision that if she should at any time sell the property for over $5,000, the overplus was to be paid to B. It is presumed, although the report does not specifically state, that the devise to A. was a devise in fee. This is a case of a clause of forfeiture upon the voluntary alienation of a legal fee, with this peculiarity, that the forfeiture only operates upon an aliquot part of the proceeds of the sale. The case arose after the death of B. in a proceeding by A. to enforce her supposed claim. It was too plain for argument that she had no right, the time for the happening of the contingency having passed. It has been submitted that a prohibition or clause of forfeiture upon the voluntary alienation of a legal fee, qualified as to time or manner, is void in Pennsylvania, and it is apprehended that the proviso in this case was, in like manner, void, and that B. had no claim in any event.

1 No cases in point were discovered in the Superior Court from 36 Super. Court to 39 Super. Court, p. 368, inclusive.

2 219 Pa. 181 (1907).

3 This is a very rare form of limitation. Most of the Pennsylvania cases have

been those of prohibition of alienation. See p. 104, n. 4.

As to forfeiture, see p. 115; as to prohibition, see pp. 115 and 117.

5 As to forfeiture, see p. 117; as to prohibition, see p. 118.

Wilson v. Heilman

6

796. In Wilson v. Heilman, there was a sole and separate use created by deed of trust, under which the court held the cestui que use took an estate tail. As the gift was merely cestui que trust, and as

9

for the sole and separate use of the the circumstances necessary to the validity of the sole and separate use had ceased to exist, the husband having died, the statute of uses applied and the woman had, as the court held, a good and marketable title to the property, the estate tail being turned into a fee under the provisions of the Act of 1855.10

Fredericks v. Kerr

797. In Fredericks v. Kerr,' the testator directed his property to be sold and the proceeds disposed of, as directed in the will. The testator, however, especially granted to his executor the term of five years in which to make sale of the real estate. Upon the expiration of the five years, the right to compel the sale attached, and as the legatees took immediate interests in the proceeds, postponed in enjoyment only by the five year clause, there was no violation of the rule against perpetuities.2

Ault v. Karch

3

798. In Ault v. Karch, there was a devise to three daughters, with the proviso that none should alien without the written consent of the others. The case arose on a proceeding to settle the marketability of the title to the real estate. All of the daughters joined in the deed, and no question, therefore, as to the clause of prohibition was before the court. It is apprehended, however, that the prohibition was void, as a prohibition on the voluntary alienation of a legal fee qualified to time.1

as

Gibbons v. Connor

7

* *

*

799. In Gibbons v. Connor, there was a trust created by will. The court, in an opinion by Fell, J., said, "It was the intention of the testator, as shown by this provision, that the estates given to his children should be free from the incidents of curtesy and dower, which would have resulted from a vesting of the corpus of the estate in this children To give effect to this intention, if for no other reason, the trust should be upheld." It is submitted that no trust can be created which will take away the legal incidents of an absolute interest. The only way to cut out curtesy and dower is to create life estates for the persons contemplated. The case arose on a bill for the partition by one of the children, who claimed an absolute legal interest in his share of the estate. The bill was dismissed. The decision was correct anyhow because the trust could not be terminated in any event, unless all the beneficiaries joined in the application. The reasoning in the case is in line with that previously noticed sustaining the validity of a trust of an absolute interest as against the cestui que trust.

Van Leer v. Van Leer

8

800. In Van Leer v. Van Leer," the testator gave an absolute estate to his son John, and then by a codicil, provided that the interest should not be subject to voluntary or involuntary alienation.10 The case arose on an application by John for a conveyance of the legal title. The decree of the court below, refusing to direct the conveyance, was affirmed by the Supreme Court on appeal. Mestrezat, J., who delivered the opinion of the court, did not indicate clearly whether he thought the trust was valid as a trust of an absolute gift, or whether because the codicil reduced the estate to a life estate

and provided for a gift over of the principal. It has already been submitted that a trust of an absolute interest, either with or without a clause against alienation is, on principle, void as against the cestui que trust, and that the only way

5 220 Pa. 395 (1908).

6 At

p. 398.

7 See p. 365, and n. 9.

10 The case is badly reported, as the exact words of the will are not given, and it cannot be told whether the limita

8 See pp. 303, 304, 312, as to trust of tions were such as to reduce the fee to

an absolute interest.

a life estate or not.

9 221 Pa. 195 (1908).

the donor can put the principal beyond the reach of the cestui que trust," is to create a life estate with a gift over of the principal. The law in Pennsylvania, however, is probably otherwise,' and this case does not make the matter any clearer.

Krauczunas v. Hoban

2

801. In the case of Krauczunas v. Hoban, certain real estate was conveyed in trust to trustees to hold for a certain unincorporated religious society. The case arose on a bill in equity by the society against the trustee who had been substituted in the place of the original ones, for a decree directing him to convey the title to other trustees who had been selected by the members of the society. The defence appears to have been that the canons of the Roman Catholic Church provide that the title to the property of a church of that denomination must be in the ordinary. The court below dismissed the bill. On appeal, the Supreme Court reversed, Stewart, J., saying that under the provisions of the Act of April 26, 1855,3 providing that a majority of the male members, etc., of any religious society might choose a person who should hold the title of their property, the plaintiffs were entitled to a decree in accordance with the prayer of the bill. The first paragraph of the syllabus, which reads that a conveyance of real estate to a trustee for the use of a particular congregation constitutes an executed legal estate in the congregation itself, is, of course, inconsistent with the facts of the case, and with the opinion of Stewart, J., in the Supreme Court. The learned judge distinctly said that there was a trust with the equitable title outstanding in the church. The reporter evidently copied this language from the quotation from the opinion of another case, without observing that that part of the sentence quoted had no application to the case in hand. If the statute of uses applied, there would be no necessity or possibility of a conveyance, as the legal title would then be in the church. Since the society was an unincorporated charitable society, it could probably take the legal title."

4

5

11 See pp. 303, 304.

1 See p. 312.

2 221 Pa. 213 (1908).

3 P. L. 328, §7; see p. 483, n. 10.

4

On p. 221.

5 See pp. 83, 86.

See p. 79, on the application of the statute to a charitable use and p. 438 on gifts at law to unincorporated associations.

Marsh v. Platt

7

802. In Marsh v. Platt, the testator directed that his executors should hold the title to certain real estate, his son William to have the use and income, and to pay $200 a year rent for the use thereof to testator's wife; after her death, the son to pay all taxes and assessments against the land, and upon his death the land to descend to and the title to vest in his heirs at law. The testator further provided that if the executors could obtain a certain price, and they considered it advisable, they were to sell, provided the son consented. The duties given the trustees were not active, the statute of uses applied, the son had a legal life estate, which was in a position to unite with the legal remainders, and under the rule in Shelly's case, the son took a fee. The court, however, in a per curiam opinion, approached the subject from a rather unusual point of view. They said that the limitation was within the express language of the rule in Shelly's case, and that the only question that arose was whether the conditions and the trust took the devise out of the rule. They then concluded that the duties were not active, and that the executor was the mere holder of the title on a dry trust. It is submitted that this is putting the cart before the horse. It was not a question whether the trust took the case out of the rule in Shelly's case, but whether the trust was so far executed that the case was ripe for the application of the rule. This case can only be sustained on the theory that no conveyance is necessary when the statute applies."

10

Dallett v. Taggart

803. In Dallett v. Taggart,' the cestui que trust of a sole and separate use, in which no express power to will was conferred, made a will during coverture. It was held in an action of ejectment after her death, she having survived her husband, that the will had no effect on the property held under the sole and separate use. It was argued that the Act of June 4th, 1879,2 providing that a will should take effect as of the

7221 Pa. 431 (1908).

8 See p. 82.

9 If the executor held the title, the rule would not apply, as the son would then have the equitable title, which

could not unite with the legal remainders.

10 See pp. 83, et seq.

1 223 Pa. 180 (1909).

2 P. L. 88.