Determinable Charitable Trusts 793. A determinable trust exists when there is a direction to the trustee to terminate the trust and pay the fund back to the donor or his heirs. There is no reason, it is apprehended, to sustain an exception in this case where the objects are charitable, and it is submitted that the rule against perpetuities and the rule forbidding restraints on enjoyment should apply equally, whether the gift is in trust for a non-charitable object or for a charitable object. One case has arisen in Pennsylvania where there was such a discretion, and although the point was not raised for decision, the court seemed to think that the discretion could be exercised at a remote period.' It is often a difficult question of construction to distinguish between a determinable gift at law and a determinable trust.10 7 For a discussion of the application of the rule against perpetuities, see §413, ante; for a discussion of the application of the rule forbidding restraints on enjoyment, see §§524, 539, ante. 8 Lewis's Est., 152 Pa. 477 (1893). For a further discussion, see Gray, Rule Perp., 2 ed. (1906), §603i. 10 See Gumbert's App., 110 Pa. 496 (1885); see also Griffitts v. Cope, 17 Pa. 8 96 (1851). For a distinction between a conveyance on condition and a conveyance in trust, see Barr v. Weld, 24 Pa. 84 (1854). For a case of a conveyance upon condition and discussion of who may take advantage thereof, see McKissick v. Pickle, 16 Pa. 140 (1851), s. c. 21 Pa. 232 (1853). For example of a clause of re-entry, see City v. Bicknell, 35 Pa. 123 (1860). TABLE OF CASES CITED IN APPENDIX. Ault v. Karch, 220 Pa. 366.. PAGE 488 496 491 494 488 489 490 496 493 491 492 493 489 487 495 493 488 APPENDIX 794. The Appendix contains a 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. 3 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,5 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 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 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 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 7 Gibbons v. Connor 5 * * * Το 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 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. * See pp. 303, 304, 312, as to trust of an absolute interest. 221 Pa. 195 (1908). 10 The case is badly reported, as the exact words of the will are not given, and it cannot be told whether the limitations were such as to reduce the fee to a life estate or not. |