9

case of Smith's Appeal, and the two kinds of property should be dealt with separately. The common practice of failing to distinguish between the two kinds of property is illustrated by several cases.10 In most cases neither the reporter nor the court thinks it necessary to indicate what the subject matter of the gift is.

Conversion

125. The doctrine of conversion depends on the circumstance that the parties entitled to the proceeds can compel a sale. If the statute applied, it would defeat that right, as the executor would be deprived of the legal title and consequently of the power to make the sale. The direction to sell seems to make the trust active. As soon as the sale is made, the proceeds are personal property, apart from the doctrine of conversion, to which the statute would not on principle apply.1 When the parties agree to reconvert and dispense with the sale, the power of the executor is at an end. There seems to be some force in the argument that in this case the statute applies and gives the cestui que trust at once the title. No authority for the proposition has been found, and it would undoubtedly be safer to have a conveyance of the legal title, and such, probably, is the prevailing practice.

Use For a Minor

126. Where the cestui que use is a minor, the legal title would be executed in him just the same, as the statute contains no exception in favor of minority, and there is no reason at common law why an infant cannot take title to real estate. In some cases, however, the courts seem to think that the trust would not be executed until the cestui que use arrived at majority, and it has been said that if there are active duties during minority, the statute does not apply during that time, but when the minor comes of age, the use is executed and the legal title passes to him at once. There is no reason why

23 Pa. 9 (1854). See also language of Penrose, J., in Francis's Est., 17 Pa. C. C. 163 at 165 (1895).

10 Moorhead Est., 180 Pa. 119 (1897).

1 See Koenig's App., 57 Pa. 352 (1868), where there was a conversion and a sale, yet the court seemed to think that the activity of the trust was material.

3

2 Dictum Cable v. Cable, 146 Pa. 451 (1892); Mitchell, J., at p. 455 said that the trust was executed on the majority of the cestui que use, if not before; see Jeremy's Est., 178 Pa. 477 (1896).

3 Mark v. Mark, 9 Watts, 410 (1840); Dictum Black, J., in Steacy v. Rice, 27 Pa. 75 at 81 (1856).

the operation of the statute should be suspended merely because the cestui que use is a minor. A guardian can be appointed, if necessary, to take care of the property and collect the rents until the cestui que use comes of age.

5

Contingent Use

127. It was at first thought that a contingent use was not executed by the statute pending the contingency. Mr. Sugden, however, goes thoroughly into the notion and explodes the theory that a contingent use is not executed. The weight of authority in Pennsylvania is to the effect that the contingent use is executed by the statue. There are, however, some cases and expressions to the contrary, which may be considered as overruled by the other authorities, although the conflict does not appear to have been called to the attention of the Supreme Court or the point ever argued. In some cases contingent uses in personal property have been said to be executed. If the statute does not apply to personal property," these cases are open to grave objection. The case of a contingent use which commonly arises is that of a use after the termination of an active trust, which is discussed in the next section.

After Termination of the Active Trust

123. The statute applies to the uses which take effect upon the termination of the active trust.10 The ordinary instance of this class of cases is where the trust for life is terminated and the property becomes vested in those in remainder. The existence in the trustee of a power to sell and make partition

4 Saunders, Uses, Vol. 1, p. 231 (1823). 5 Sugden, Powers, Vol. 1, p. 18 et seq., 8 ed. (1861).

6 See cases cited in $128, post.

7 Sharswood, J., in Rife v. Geyer, 59 Pa. 393 at 397 (1868), said that they are executed when vested. Pratt v. McCawley, 20 Pa. 264 (1853), was a case of a settlement by a woman on the eve of her marriage, in trust for her separate use for life and after her death to convey the same in trust for her children. She died, and the conveyance was made upon active trusts for the children for life, and after their death to convey to their appointees by will. The court held, in a controversy over the validity

of a mortgage given by one of the sons during his lifetime, that the whole estate was equitable. Accord Morton's Est., 24 Super. Ct. 246 (1904). Kennedy, J., in Ashhurst v. Given, 5 W. & S. 323 at 328 (1843), said that the statute did not apply where there was no cestui que use in being to whom the possession could be transferred.

8 E. g., West's Est., 214 Pa. 35 (1906). 9 See $123, ante, on a use of personal property.

10 As to what is an active trust, see §110, ante. No question has ever been raised as to a vested use. For a discussion of the case of a contingent use see $127, ante.

does not prevent the operation of the statute,' and where there is a direction to convey at the termination of the life estate, the statute applies.2 Where, however, there is a discretion to terminate the trust, it has been said that the statute does not apply. It seems, however, on principle, that the title should remain in the trustee. It is difficult to see how he can sell, make partition or convey unless he has the legal title. The law on this point is far from clear.

The Sole and Separate Use

129. The statute does not apply to the sole and separate use, even though there are no active duties in the trus

1 Dodson v. Ball, 60 Pa. 492 (1869); Chamberlain v. Maynes, 180 Pa. 39 (1897). In this case there was a vested remainder which became executed, if at all, immediately upon the execution of the trust, and not after the termination of the life estate, as argued by the counsel for the appellee. One of the remaindermen conveyed, and it was held that her grantee could maintain ejectment against the other remaindermen. If this was considered as a legal title, the reasoning of the court was confusing. To say that the statute executed the use, and that the power vested in the trustee to make partition could not prevail as against the cestui que trust who wished to terminate the trust, is correct, but in no case could the vesting of the legal title depend on whether the cestui que trust chose to treat it as in her. It would be in her either by force of the statute or by force of the conveyance from the trustee, and in no other way. The learned judge, Mitchell, J., seemed to think that the remainderman or woman or her grantee, had a title which was available in ejectment without a deed. If this is so, why say that she took the title without the deed? See, however, Smilie's Est., 22 Pa. 130 (1853).

2 Bacon's App., 57 Pa. 504 at 512 (1868); Earp's App., 75 Pa. 119 (1874), point not discussed here, decision not sustainable on any other ground; Armstrong's Est., 9 W. N. C. 289 (1880); Gray, Restraints on Alien., 2 ed. (1895), $216. The remarks of Penrose, J., in Snyder's Est., 180 Pa. 70 (1897), were dicta, for an equitable interest could vest and pass under the intestate laws as well as a legal interest could. Contra: Rice, P. J., in Rockhill's Est., 29 Super. Ct. 28 at 35 (1905). The learned judge, however, does not mention the statute of uses, and his language seems unnecessarily restricted to the case of a will.

3

Paxson, J., in Wallace v. Denig, 152 Pa. 251 (1893); see Bank v. Denig, 131 Pa. 241 (1889), and Wilson v. Denig, 166 Pa. 29 (1895). See, however, remarks of Rice, P. J., in Rockhill's Est., 29 Super. Ct. 28 at 35, 36 (1905).

4 The clause of sole and separate use originally was "to permit and suffer the cestui que trust to receive and take the rents" for her sole and separate use, etc.; Pullen v. Rianhard, 1 Whart. 514 (1836); Dodson v. Ball, 60 Pa. 492 (1869). It was not until modern times that the words of activity, such as "to receive and collect the income" were inserted.

5

tee. The sole and separate use clause standing by itself does not necessarily prevent the operation of the statute of uses, since the incidents of the separate estate in equity can easily be carried over into the common law in the same manner as were the other peculiar incidents of the use. Since, however, the chief protection to the woman lay in the presence of the trustee to stand between her and the importunities of her husband, an application of the statute would have left her a free agent at law, and defenceless against his influence. Various reasons have been assigned for the non-application of the statute, but this is the principle underlying all of them." Where the circumstances requisite to the validity of the sole and separate use have ceased to exist, the statute applies and the beneficiary becomes immediately seised of the legal title, and entitled to deal with it as her own, and her life estate will unite with the legal remainders, under the rule in Shelly's case. If the active duties, however, have reference to some other object, or there is some other reason for continuing the trust, the termination of the sole and separate use will not entitle the cestui que trust to call for a conveyance,10 unless she has a fee simple estate, in which case she is entitled to a conveyance, as the trust is a restraint on her absolute ownership.1 In a number of cases where there was an active trust,

9

5 Lancaster v. Dolan, 1 Rawle, 231 (1829), language of Gibson, C. J., at 247; Pullen v. Rianhard, 1 Whart. 514 (1836); Cochran v. O'Hern, 4 W. & S. 95 (1842) dictum. For a case where there were no words of separate use, and it was held that the statute applied, see Kinsel v. Ramey, 87 Pa. 248 (1878). The dictum contra in Carson v. Fuhs, 131 Pa. 256 (1889), may be disregarded.

Grier, J., in Cochran v. O'Hern, 4 W. & S. 95 at 96 (1842); Lowrie, J., in Kuhn v. Newman, 26 Pa. 227 at 231 (1856). 7 As to what these circumstances are, see $570, post.

Smith v. Starr, 3 Whart. 62 (1838); Steacy v. Rice, 27 Pa. 75 (1856); McKee v. McKinley, 33 Pa. 92 (1859). See §571, post.

Steacy v. Rice, 27 Pa. 75 (1856); Nice's App., 50 Pa. 143 (1865). The decision contra in Harris v. McElroy, 45 Pa. 216 (1863), may be considered

7

as overruled. Dodson v. Ball, 60 Pa. 492 (1869); Tucker's App., 75 Pa. 354 (1874). 10 Ash's App., 80 Pa. 497 (1876); Delbert's App., No. 1, 83 Pa. 462 (1877); Dunn's App., 85 Pa. 94 (1877); Ingersoll's App., 86 Pa. 240 (1878), reversing 2 W. N. C. 13. Her life estate will not unite with the legal remainders; Earp's App., 75 Pa. 119 (1874); Ashhurst's App., 77 Pa. 464 (1875). The court will sometimes construe the active duties to relate solely to the sole and separate use, and not to the life estate. See Megargee v. Naglee, 64 Pa. 216 (1870).

1 See §516, post; Megargee v. Naglee, 64 Pa. 216 (1870). The court said in this case that the trust fell, but nevertheless directed a conveyance. The trust would remain until the cestui que trust chose to call for a conveyance; see §525, post. If the reasoning of the court,

the court has said that the statute applied when the sole and separate use came to an end.2 No conclusion as to the law can be drawn from these cases. The author has discovered no principle upon which they can be reconciled, and the remarks of the judges shed no light on the question whatsoever. It is submitted that on principle the law should be as follows the circumstances requisite under the peculiar doctrine of Pennsylvania law to the validity of the sole and separate use must be present to defeat the operation of the statute. When those circumstances have ceased to exist, the statute at once applies when there are no other active duties. Where there are active duties, the statute does not apply, and the right of the cestui que trust to have a conveyance depends on whether she has a fee or a life estate. The trust only falls of itself in those cases where the statute applies; in other cases, the trust remains until the cestui que trust calls for a conveyance.

Charitable Use

130. The effect of the statute of uses on a charitable use is not clear. In those cases where the cestui que use is indefinite, there would seem to be a practical bar to the operation of the statute, as there is no one to take the legal title.3 It seems that this is the case of a special trust, as the trustee has active and special duties to perform, to wit, to select the cestui que trust. It is true that the statute executes a contingent use. This case presents, however, no greater difficulty than that which exists in the case of a contingent legal remainder at law; whereas, in the case of an indefinite charitable cestui que trust, there is not, and never can be, anyone to take the legal title. Where there is a use for a definite charitable object, there is no difficulty and the statute executes the use in the cestui que use.*

that the statute applied, had been correct, there would have been no conveyance decreed, as the title would have passed by force of the statute. See also Chadwick v. McCombs, 4 Sadler's Cases, 121 (1886).

2 Strong, J., in Kay v. Scates, 37 Pa. 31 at 38, 39 (1860); Strong, J., in Koenig's App., 57 Pa. 352 at 355 (1868), there was a conversion here, see § 125, ante; Agnew, J., in Megargee v. Naglee, 64 Pa. 216 at 218 (1870).