
    Gingrich’s Appeal.
    A voluntary deed of trust provided that the settlor’s property should he sold, and, after his debts were paid, the balance of the proceeds should be invested for the use of the settlor and" his wife during their joint lives and the life of the survivor of them; “and, at and immediately after the death of the survivor of them, the said property to vest in their children or their legal representatives in fee simple as tenants in common.” The wife subsequently died and, the settlor then executed a deed of revocation. J9ele2,fhat the deed of trust was testamentary in character, that the children took no vestbd interest, and that the deed of revocation was valid. , . , ■
    Feb. 22, 1889.
    Appeal, No. 434, Jan. T. 1888, from C. P. Lebanon Co., to review a dócree sustaining exceptions by David C. Gingrich to an auditor’s report on the account of George Hoffman, trustee of Joseph Gingrich and wife. Stekrett and Mitchell,'JJ.,' absent. ]
    The following facts were found, inter alia, by the auditor,' Howard O. Shirk, Esq.: By.deed dated Aug. 20,' 18Y2, Joseph, Gingrich and Catharine, his wife, granted and conveyed unto William W. Murray, and to his heirs and assigns, several tracts of land, and undivided interests in several other tracts, and also all his and their estate, goods, chattels and effects, and property of every-kind, real, personal and mixed, excepting and reserving unto them goods and chattels, articles and thing's, to the amount of three hundred dollars to be selected by them, in trust, however, and to the intent and purpose that he the said William W. Murray shall, and do, as soon as convenient, sell and dispose of all the lands' of him the said Joseph Gingrich, either at public or private sale, in the' whole or in such lots, parts or parcels as the said trustee may deem to the best interest of his said cestui qiie trusts, and execute and deliver the proper deeds of conveyance to the purchasers thereof in fee simple, and also to sell and dispose of the goods and chattels not' above reserved, and collect and recover all the outstanding claims and debts to him due, and, with the moneys arising therefrom, after deducting his reasonable costs and charges, shall and will pay'the' creditors of the said Joseph Gingrich their respective demands in full, if not, pro rata, according to the amount of their respective demands, without preference- as between individuals; and in the further trust and confidence that the said William W. Murray, shall and do invest the surplus, if any, in such real estate as he may deem proper after consultation with his cestui que [trustent omitted] for their use during their joint lives and the life of the survivor of them. They or the survivor of them to keep the same in proper repair and pay the taxes thereon, and to receive the rents, issues and profits' thereof, provided, however, that the life estate, or income, shall never be sold or disposed of by the recipients nor by process of law-for their or either of their debts hereafter contracted. And at and immediately after the death of the survivor of them) the said property to vest in -their children or their legal representatives in' fee simple as tenants in common. Provided,' further, that in case there should be a surplus of money after purchasing and páyin-g for the r eal estate so to be purchased, then to in vest -the same in such funds as may be agreed upon, and pay the interest regularly, when received, to the said cestui que trusts. Provided, also, that in case of sale of any of said property, or investment of any of said surplus as aforesaid, the same shall only be consumated after consultation with and approval of Henry Gingrich and Cyrus Gingrich, brothers of said Joseph Gingrich.”
    On the same day, Aug. 20, 1872, Joseph’s brothers, Henry and Cyrus, advanced $16,000, which was used to pay off a judgment against a farm, part of the real estate conveyed by Joseph, upon which an execution had issued. The assignee and trustee sold the farm to Henry Gingrich. The latter resold it at an advance, reimbursed himself and his brother, Cyrus, out of the purchase money and turned the balance over to the trustee. This balance, some $11,000, was invested in various securities but no part of it was ever invested in real estate. Catharine Gingrich died May 21, 1882. The trustee named in the deed died ana successive trustees were appointed, the last being Geo. Hoffman, who filed his account, to which exceptions were taken by David C. Gingrich, the appellant, a son of Joseph Gingrich, the settlor, and the auditor appointed. Joseph Gingrich, the surviving settlor, executed a deed of revocation Oct. 12, 1887, after the appointment of the auditor. The auditor’s authority was extended by the court to enable him to decide if the revocation was valid and how it affected the fund. The auditor held that the deed of Aug. 20, 1872, vested an absolute estate in the children of Joseph' Gingrich and that the deed of revocation was inoperative. Exceptions to this report were filed by the trustee and by Joseph Gingrich.
    . The exceptions were sustained, in the following opinion of the ■court below, by McPherson, J.: „
    “ The principal question for decision is, whether the children of Joseph Gingrich took a vested interest under the deed of trust of Aug. 20, 1872. Their mother’s interest was no doubt a vested one. During her lifetime, the trust was beyond her husband’s power. Ritter’s Ap., 59 Pa. 9. She is dead, however, and her interest did not survive her, so that it is now important to determine whether the language concerning the children gave them also a present interest in 1872, postponing merely the time of enjoyment; or whether it is. testamentary in its character, intended to give them interest and enjoyment at the same time, namely, at the death of the surviving grantor. If their interest vestéd in 1872, the trust, •although.voluntary, is irrevocable, because it has been executed and a present beneficial interest has been given to third persons. Rick’s Ap., 105 Pa., on page 536; Nagle’s Estate, recently decided in the orphan’s court of this county. If, on tlm other hand, their interest is testamentary, and the trust was only for the convenience of the grantors, it is revocable. Frederick’s Ap., 52 Pa. 338; Frew v. Clarke, 80 Pa. 178; Fellow’s Ap., 93 Pa. 470; Wilson v. Van Leer, 103 Pa. 600; Rick’s Ap., supra; McFarland’s Ap., 2 Cent. R. 347.
    “ The auditor thought ■ the children’s interest was vested, and refused to give effect to the deed of revocation, deciding rightly if his construction of the deed of trust be correct. We are obliged to ■come to a different conclusion, however, believing that the deed of trust gives the children no interest until after the death of the surviving grantor. The language of the deed seems to require this construction. There are no words of present conveyance to the children, either direct or indirect; the trust is for the use of the grantors £ during their joint lives and the life of the survivor of them.’ They, and not the trustee, are. to repair the realty to be bought, pay the taxes upon it and receive its income; if any surplus remained after the contemplated purchase of real estate, it was to be invested and the interest paid regularly to the grantors, and it was only £ at and immediately after the death of the survivor of them ’ that the said property was £ to vest to their children or their legal representatives in fee simple as tenants in common.’ It may ■even be, that this provision applies only to such real estate as might be bought, and, in that event, it would be necessary to treat the fund as real estate before the children’s interest could attach, since, in fact, no realty was ever purchased; but we lay no weight upon this point, and, for present purposes, treat the provision as applying to realty and personalty alike. Even thus considered, the intention •of grantors seems to us to be clear; the children were to have no interest until after the death of the surviving grantor; only then was it to vest, and the conclusion appears to follow that this provision is in substance testamentary and therefore revocable.
    
      “ In other respects, also, the trust was solely for the grantors’ benefit and convenience ; the evidence does not make out a trust to protect themselves against improvidence or evil habits, and we can see no distinction between the case before us and the decisions in Frederick’s Appeal and Nick’s Appeal. Upon these authorities, we hold this trust to he revocable since the death of Mrs. Gingrich, and, as it has in fact been revoked, the fund must be awarded to Joseph Gingrich.”
    
      The assignments of error specified the action of the court in holding, 1, that the children of Joseph and Catharine Gingrich had no vested interest under the deed of trust; 2, that the interest of the children of Joseph and Catharine Gingrich did not vest until after the death of the surviving grantor; 3, that the deed of trust was testamentary in its character and revocable; 4, that the deed of trust was revoked by deed of revocation dated Oct. 12, 1887; ■5, that “ the trust was solely for the grantor’s benefit and convenience, the evidence does not make out a trust to protect themselves against improvidence or evil habits6, in awarding the trust fund to Joseph Gingrich; 7, in holding that David C. Gingrich has no ■standing to insist upon his exceptions to. the trustee’s account and .also in dismissing the same ; and, 8, in not confirming the report of the auditor.
    
      F. E. Meily, with him A. W. Ehrgood, for appellant.
    The •deed of trust was in express terms an actual present conveyance, at once passing the grantor’s entire legal estate to the trustee. The children took a vested remainder in fee supported by a particular-estate for life. Greenfield’s Est., 14 Pa. 489; Cressrnan’s Ap., 42. Pa. 147; Painter’s Est., 42 Pa. 158, note; Dennison v. Geehring,. 7 Pa. 175; Ritter’s Ap., 59 Pa. 9 ; Fellows’s Ap., 93 Pa. 470; Eckman v. Eckman, 68 Pa. 460.
    ■, If a deed cannot be treated .as a bargain and sale, for want of. a . pecuniary consideration, yet if the consideration of blood, exist, it will, be. supported as a covenant to stand seized. Ashhurst’s Ap., 77 Pa. 464; Sprague v. Woods, 4 W. & S. 192; Reese v. Ruth et al., 13 S. & R. 434.
    The construction that the children were to take no interest pntil after the. death of the surviving grantor, was .too technical. Wager v. Wager, 1 S. & R. 374; Rudebaugh v. Rudebaugh, 72 Pa. 271; Tyler, v. Moore, 42 Pa. 388; Bufford v. Holliman, 10 Tex., 560; 2 Jarman on Wills, 407.
    
      C. H. Killinger and J. P. S. Gobin, with them P. H. Reinhard, for appellee.
    The provisions of the deed of trust show that it was for the'grantor’s benefit and convenience. Frederick’s Ap., 52 Pa, 341.
    ' The estate in the children was only to vest after the' decease of ' both grantors. It makes no difference what is the' form of the instrument, if it vests no present interest, but only appoints what is-to be done after the death of the maker, it is testamentary. Turner v. Scott, 51 Pa. 126; Frederick’s Ap., 52 Pa. 338; Frew v. Clark, 80 Pa. 178; Wilson v. Van Leer, 103 Pa. 600; Rick’s Ap., 105 Pa. 535; Redfield on Wills, 5.
    ' ' Equity will supply the absence of a power of revocation.. Russell’s Ap., 75 Pa. 289; Miskey’s Ap., 107 Pa. 628.
    March 11, 1889.
   Per Curiam,

The precise question here is whether the children of Joseph and Catharine Gingrich took a vested interest under the deed of trust, executed by the former Aug. 20,. 1,872. That the wife, Catharine Gingrich, took a vested interest, under said deed, is clear. It follows that the husband could not have interfered with the trust during the life of the latter. She is dead, however, and the case is entirely different as to the children. Their interest did not vest with the execution and delivery of the deed; it was only intended to vest after the death pf both their parents; or, in the language of the instrument itself: “And at and immediately after the death of the survivor of them, the said property to vest in their children or their legal representatives in fee simple as tenants in common.” The deed was testamentary in its character and therefore revocable under the authority of Frederick’s Appeal, 52 Pa. 338; Rick’s Appeal, 105.Id* 528, and that line of cases. It follows tha/t Joseph Gingrich’s deed of revocation, ended the trust, and that this appellant has no standing to except tq the account of the trustee.

The decree is affirmed and the appeal dismissed at the costs of the Appellant. . . "  