
    Rodrigue’s Appeal. [Bellas’s Estate.]
    A testator, by bis will, devised and bequeathed, inter alia, the residue of his real and personal estate to his three daughters, in fee, as tenants in common, share and share alike, with power of sale in the executors. By a codicil, he devised in fee to trustees all the real and personal property to which one of his daughters would be entitled under the will, requiring that the trustees “ apply all the proceeds and profits thereof to her personal use and support and benefit from time to time as she may have need and require when by her demanded in writing for herself and her children, but not to be applied or used otherwise.” The daughter was a widow, and not in contemplation of marriage. A bill was brought to declare the trust a dry trust and for a reconveyance. The daughter died pending the proceedings and her heirs were substituted. Held that a decree for a conveyance should be entered.
    
      It seems that such a trust was passive and that the cestui que trust was entitled to a conveyance in her lifetime.
    May 25, 1888.
    Appeal, No. 410, Jam T., 1888, to review decree of O. C. Northumberland Co., dismissing a bill in equity to declare a trust void and for a conveyance. Trunkey, J., absent.
    The bill was filed by Ann Caroline Rodrigue against Simon P. Wolverton, as trustee, for tbe said Ann Caroline Rodrigue under the will of Hugh Bellas, the father of complainant, late of Sunbury, deceased, and also as administrator cum testamento annexo of said Hugh Bellas, deceased. The bill, as it appeared by the abstract printed in appellant’s paper book, contained the following averments : By the will of her father, Mrs. Rodrigue was given absolutely the proceeds of a contract of sale which the testator had made of a lot of land in Hollidaysburg, the rents of a certain farm and property in Union county, to be paid half yearly to her until she should receive her share of testator’s coal lands, and a one-third undivided interest absolutely and in fee in the testator’s homestead after his widow’s death, and in all the residue of his estate, her two sisters taking the undivided two thirds. The will was dated Oct. 10, 1860. Nov. 3, 1860, a codicil, quoted in the opinion of the court below, was made, duly signed, sealed and witnessed.
    Mrs. Rodrigue, at the time of the testator’s death, was a widow, and not in contemplation of marriage. She never married again. The trustees named in the codicil of Nov. 3, 1860, declined to act and afterward died. A subsequently appointed trustee, Dr. Priestly, simply directed the administrator to pay over to Mrs. Rodrigue directly the amounts due her from time to time under her father’s will. Dr. Priestly was discharged upon his own petition in 1882, and has since died. There was no trustee from that time until Mr. Wolverton, the present trustee, was appointed in December, 1881, upon the application of the complainant and for the purpose of instituting this proceeding. The bill was filed to obtain a decree declaring the trust in the codicil of Nov. 3, 1860, void and for a conveyance. The power of sale of all real estate was given by the will to any two of the three executors therein named.
    The answer of the trustee and administrator, as it appeared by the abstract printed in appellant’s paper book, admitted the facts alleged in the bill, but averred that the trust created by the codicil was operative, and, as administrator, he was required to account to the trustee.
    The bill and answer were not printed in full in plaintiff’s paper book. An agreement filed admitted the following facts: Mrs. Rodrigue was fifty-four years old at her father’s death, 1863. Mrs. Rodrigue’s children, naming them, were all of age and there were no issue of any deceased children. The children assented to the prayers of the bill, by agreement filed.
    The opinion of the court below was as follows, by Rockefeller,
    “ This case was submitted on bill and answer, accompanied by briefs of argument, with a request that an opinion be filed very soon, as the parties desire the opinion of the supreme court at the coming term. Being anxious to accommodate them, it is but just to myself to say that, owing to a press of public business, I have not been able, under the circumstances, to give it such attention and consideration as I would like. Therefore the following opinion, necessarily hastily drawn, is submitted for what it is worth. Whilst Mrs. Rodrigue was a widow when her father made his will, and did not contemplate a second marriage, and perhaps this is not strictly a spendthrift trust, nor a trust to support a remainder or any interest in futuro, yet, in my opinion, according to the authorities, this is not always required.
    “ It may be stated as a general proposition that everyone competent to enter into a contract or make a will, or to deal with the legal titles to property, may make such disposition of it as he pleases ; and he may annex such conditions and limitations to the enjoyment of it as he sees fit ;■ and he may vest it in trustees for the purpose of carrying out his intention. The testator, Hugh Bellas, was one of the most eminent and profound lawyers in Pennsylvania.
    “On Oct. 10, 1860, he made his will, ‘Feeling grateful,’ as he says, ‘to Providence that I have had sufficient strength to prepare it carefully and execute it.’ In the will, he devised and bequeathed the residue of his real and personal estate to his three daughters, Eliza, Ann, and Amelia, in fee as tenants in common, viz., share and share alike, subject to the payment of debts, etc., and to be divided as therein stated. On Nov. 3,1860, twenty-three days after the making of the original will, he made a codicil, which reads as follows: ‘ I make the following changes in my will, dated Oct. 10, 1860. I devise in fee to my friends, the Hon. Alexander Jordan, and James Pleasants, Esq., and John Taggart, and the survivor of them trustees all the real and personal property and estate, to which my daughter Ann C. Rodrigue would be entitled by my said last will, and these trustees and each of them are required to apply all the proceeds and profits thereof to her personal use and support and benefit from time to time as she may have need and require when by her demanded in writing for herself and her children, but not to be applied or used otherwise.’
    
      t£ It is clear, therefore, that the testator intended the three persons named as trustees to be invested with a trust estate during the lifetime of his daughter, Mrs. Rodrigue. There is no attempt or intention to create a trust for accummulation or a perpetuity.
    “ The trust will necessarily cease at the death of Mrs. Rodrigue, as the proceeds andprofits could no longer be applied to her personal use, support and benefit. The ease of Barnett’s Appeal, 46 Pa. 392, was not a case of a trust in favor of a married woman, a spendthrift, etc., but all the cestui que trusts were sui juris.
    “ It is strenuously contended that the present is a case of a dry trust, there being no special and particular duties pointed out to be performed by the trustees; in other words that there are no active duties imposed on the trustees. I am inclined to think that this conténtion cannot be sustained. In Barnett’s Appeal, supra, the supreme court said: £ The principal error is in laying down as the law of Pennsylvania that a trust to receive rents and pay them to another is executed, although not an use executed by the statute of uses, but arising from some general principle inherent in the common law of the state. This is not supported by authority, for in Pullen v-. Reinhard, 1 Wh. 521, it was distinctly held that in such case the legal estate must continue in the first devisee so that he might perform the trust; because, without having the control of the estate, he could not receive the rents and pay them over as directed.’ There is a distinction between a devise to a person to pay over the rents and profits to another, and a devise in trust to permit another to receive the rents and profits. Pullen v. Reinhard, supra. In the present case, the trustees are expressly required to apply all the proceeds and profits to the personal use, support, and benefit of the cestui que trust from time to time as she may require them, etc., and it is necessary that the legal estate should continue in them.
    “Mrs. Rodrigue was a widow, with a family of children, at the time her father made his will. It has been said that every man knows his own family best. Just what was in the mind of. the testator at the time he executed the codicil may be surmised, and it is fair to presume that some proper and important motive prompted him at the time. In Earp’s Ap., 75 Pa. 123, the supreme court, in referring to the case of Barnett’s Appeal, supra, said: ‘Many special trusts, and some of them for persons sui juris, have since been upheld, a few of which have been referred to in Ogden’s Appeal, 70 Pa. 507. . . . Trusts supply the means of carrying out family arrangements and of breaking the force of the. blow death deals against the head. They furnish a protection against improvidence, indiscretion, inexperience, imbecility, misfortune, and even vice, upholding the wishes of parents and friends, and inspiring even the dying with comfort. They are contrary to no principle of justice, wisdom or morality, and therefore demand our confidence and support in proper cases. Hence, when a special trust within these limits is clearly raised by the imposition of active duties on the trustee, or .for purposes making it necessary to preserve the estate intended to be given, the will of the donor gives efficacy to the trust.’
    “ All that was so well said by the supreme court in that case is applicable to the present case, if we consider what was the manifest intention of the testator. He gave the corpus of the estate to the trustees. By well-chosen words he invested the share of Mrs. Rodrigue in them in fee; and then, doubtless to furnish a protection against improvidence, indiscretion, inexperience, or misfortune, he requires these trustees and each of them to apply all the proceeds and profits thereof to her personal use and support and benefit and so forth.
    “He does not require the application all at once or whenever she may demand it, but the words of the codicil are ‘ from time to time as she may have need and require.’ The words, ‘ when by her demanded in writing for herself and her children, but not to be applied or used otherwise,’ may leave the question as to who is to be the judge or determine as, to the necessity and requirement somewhat uncertain; but, still, if effect is to be given to the whole clause of the codicil, it is plain that it was intended to furnish a protection in some sense against inability, improvidence, indiscretion, inexperience, etc. It is also plain that the wish and desire of this old parent was that the proceeds and profits of his daughter’s share of his estate were only to be applied ‘to her personal use, support, and benefit,’ and were £ not to be applied or used otherwise,’ and hence the words ‘ from time to time as she may have need and require.’
    “ There is nothing in the codicil giving' the control or management of the estate into the hands of the cestui que trust; she is not empowered to collect and apply the proceeds and profits, but, on the contrary, by the express terms of the codicil, the trustees are required to apply the same for the purposes mentioned.
    “ It is true, this is to be done when by her demanded in writing for herself and children; but this does not destroy the trust.
    “ Possibly, they could control the application, or, at least, the payments, for they are required to apply the proceeds and profits, ‘from time to time as she may have need and require,’ for her personal use, support and benefit.
    “ I have come to the conclusion, therefore, that the trust declared by Mr. Bellas in the codicil to his will is an active special trust, if it is anything, and must be maintained in order to give effect to his clear and well-defined purpose in relation to his daughter and her family. The trustees have an active duty to perform.
    “ They cannot perform it unless the legal estate continues in them, and the prayer of the bill, ‘ that the said Simon P. Wolverton, as trustee under the said first codicil, be ordered and directed to execute good and sufficient deeds of conveyance and assignment to your oratrix of the title to all the estate, real and personal, held by him by virtue of the trust contained in the said codicil,’ must be denied.
    “ Mr. Bellas had the undoubted right to make a will as he pleased, and if, for any good reason, he saw proper to give his daughter’s share of his estate to trustees and require them to apply all the proceeds to her personal use, support and benefit, from time to time as her necessities required, certainly this is against no principle of justice, wisdom or morality. The later decisions of the supreme court are all favorable to upholding trusts, even as to cestui que trusts sui juris, where the donor intends them to answer some legal and useful but temporary purpose not obnoxious to the law against perpetuities. Earp’s Appeal, supra.
    “ In this case, the fact that the trustees are required to apply the proceeds and profits to the personal use and support of the cestui que trusts shows that the trust was not to be perpetual, but for her life only. Under the will and codicil, after her death, the estate goes to her sons and daughters in the proportions directed by the tenth section of the will unless she has power and does make a different disposition.”
    Section 10 of the will, above referred to, was as follows: “ I request my executors in dividing and apportioning the said residue to require of my said daughters, that their respective daughters shall receive of my estate as far as practicable severally, about double the amount that my said daughters’ sons receive severally.”
    The court dismissed the bill with costs, March 16, 1888.
    
      The assignments of error specified the action of the court in holding that the trust was, 1, an active one; 2, valid and operative; 3, that the trustees held the estate only for the lifetime of said complainant, and that the trust would cease at her death; and, 4, in dismissing the bill.
    After the appeal was taken Mrs. Rodrigue died, and her heirs and legal representatives were substituted as appellants and complainants below.
    
      Franldin B. Gowan, with him James E. Hood, for appellant.
    The cases since Barnett’s Appeal, supra, sustain, as active trusts, what might otherwise have been held to be naked or dry trusts, as follows: 1, spendthrift trusts; 2, to support a remainder; 3, because the testator intended th'at the trustee should hold and manage the property, and that the life tenant should not; and, 4, on account of coverture or contemplation of marriage.
    1. This was not a spendthrift trust, for the cestui que trust was entitled to the whole of the estate when demanded by her. 2. There was no remainder. An estate in fee was given by the will, and there is nothing in the codicil which reduces this to a life estate. By the codicil itself Mrs. Rodrigue would take the equitable estate in fee, and the creation of a trust for her benefit cannot convert an equitabler estate in fee into a life estate. The codicil simply gives the legal éstate in fee to trustees and the equitable estate in fee to Mrs. Rodrigue. Under the Act of April 8,1833, the whole estate would pass even without words of inheritance. 3. There is no intention that the trustees should hold the property, and the life tenant should not. The trustees were given power to sell. The proceeds were to be given to the cestui que trust upon demand in writing. 4. There was no coverture or contemplation of marriage.
    Under the authorities, then, the trust is a dry one ; the legal and equitable estate must unite in Mrs. Rodrigue. Dodson v. Ball, 60 Pa. 492; Megargee v. Naglee et al., 64 Pa. 216; Yarnall’s Ap., 70 Pa. 335; Ogden’s Ap., 70 Pa. 501; Tucker’s Ap., 75 Pa. 354; Philadelphia Trust Co.’s Ap., 93 Pa. 209; Rea v. Girard Life Ins. Co., C. P. Phila., 16 W. N. C. 49; Stevenson’s Est., O. C. Phila., 19 W. N. C. 291.
    There is no period at which the duties of the trustee cease. It would, therefore, be perpetual. Such a trust, not being for a charitable use, is void. Hillyard v. Miller, 10 Pa. 326; Davenport v. Harris, 3 Grant, 164; Pennsylvania Co. v. Price, 7 Phila. 465; Smith’s Ap., 88 Pa. 492.
    Oct. 1, 1888.
   Green, J.,

We think it clear, upon all the authorities, that the trust created by the codicil to the will of the testator was passive, and that the appellant was entitled to an absolute conveyance of the trust estate.

The devise contained in the will was, in terms, of a fee simple estate in the realty and an absolute estate in the personalty. By the codicil, the devise is also expressly in fee to the trustees. But the trustees have no functions except merely to apply all the proceeds and profits of the estate to the personal use of the appellant as she might require them. There is no limitation over of either the income or principal of the estate to any person. There are no other estates or interests to be preserved. It is not a spendthrift trust. It was not a trust for protection during coverture, as the appellant was a widow, and not in contemplation of marriage.

No ultimate purpose of any kind requiring the continuance of the trust is expressed in the will, or can be implied from its terms, except the mere payment of the income to the cestui que trust. It would be an affectation of learning to engage in a protracted discussion of the subject, or of the numerous cases in which it has been illustrated. A mere reference tp a few of them will suffice. Dodson v. Ball, 60 Pa. 492; Ogden’s Appeal, 70 Pa. 501; Tucker’s Appeal, 75 Pa. 354.

The fact that the appellant has died since the present appeal was taken still further indicates the necessity for a decree terminal ing the trust. It can no longer be continued except upon the theory that it is to be held in perpetuity, which, of course, is inadmissible.

The decree of the court below is reversed, at the cost of the appellee, and the record is remitted, with direction that a decree be entered for a conveyance of the estate to the persons entitled thereto. H. J. L.  