
    Harry J. Weng, as surviving executor and trustee v. Harry J. Weng et al.
    Court of Common Pleas of Montgomery County.
    Decided June 21, 1929.
   SNEDIKER, J.

This is an action which seeks a construction of the will of Margaret E. Weng. This will reads as follows:

“In the name of the Benevolent Father of all:
I, Margaret E. Weng, being of sound mind and memory, and free from any restraint, do hereby make, publish and declare this as and for my last Will and Testament, hereby revoking all wills heretofore by me made.
Item I. It is my will and I direct that all my just debts and funeral expenses be paid out of my estate as soon after my decease as is practicable.
Item II. I give, devise and bequeath all the rest and residue of my estate, of whatsoever nature, real, personal or mixed, and wheresoever situate, to my Executor and Executrix hereinafter named to be by them held in trust, however, under the conditions following, until my son, Jacob L. Weng, shall attain the age of twenty-five years, empowering them to hold, manage' and control the same, and to divide the income therefrom among my three children, Mary C. List, Harry J. Weng and Jacob L. Weng equally during said trust,
Item III. When my- said son, Jacob L. Weng, shall attain the age of twenty-five years, then it is my will and-I direct, that my said Executor and Executrix shall pay first to my son, Jacob L. Weng, the sum of $600.00 to equalize advancements made by me to my other two children. I further direct that my said Executor and Executrix shall thereupon divide the remainder of my estate into three equal shares and that one of said equal shares shall immediately pass and be paid to each of my three children, Marie C. List, Harry J. Weng and Jacob L. Weng. Provided that should my said son, Jacob L. "Weng, die before attaining the age of twenty-five years leaving no issue surviving him, then my said estate shall at once pass to my surviving children.
Should either of my said children die leaving no issue, before my said son Jacob shall attain the age of twenty-five years, then his or her share shall pass to-the survivor or survivors of my children.
Item IV. (Appointment of Executors.)”

Jacob L. Weng, who is still in life, will become twenty-five years of age in the year 1930. Harry J. Weng also still lives. Mary C. List died in 1928 and left surviving her four minor children and her husband. She died testate and bequeathed all of her real and personal property to George E. List, her husband. Mary C. List was an executrix, Harry J. Weng is an executor, and since the death of Mary C. List, has been acting in full control of the estate, no successor to Mary having been appointed.

The surviving executor and trustee is in doubt with respect to the proper construction of several items of the will and he asks these questions:

Question: Jacob L. Weng will not attain the age of 25 years until in July of 1930; his said sister Mary died on July 5, 1928.

(a) Did her one-third share of the estate of her mother vest before her death and are her four minor children, or the survivors of them at the time of the distribution of the estate, entitled to receive her one-third share ?

(b) What interest in this one-third share, if any, passed to her husband, George A. List?

In answering these questions that part of Item 11 which provides:

“I give, devise and bequeath all the rest and residue of my estate, of whatsoever nature, real, personal or. mixed, or wheresoever situate, to my Executor and Executrix hereinafter named to be by them held in trust * * * empowering them to hold, manage and control the same, and to divide the income therefrom among, my three children equally during said trust.”

becomes very important, for the reason that such a direction to pay income until a time fixed for the payment of the principal sum is an indication by the testatrix that she intended to confer upon the legatee an absolute title in the principal, yet at the same time to purchase his forbearance to demand immediate payment thereof, which otherwise he would be entitled to do.

There are a number of authorities supporting this proposition. In the 60 Chancery Reports at page 195 we find the case of In the Matter of Hart’s Trusts. Ex parte Block, in which the syllabus is:

“A testator gave real estate to a devisee for life, with reminder to trustees in fee in trust to sell and pay out of the proceeds 500 pounds to a legatee when she should attain twenty-five, and he directed that the legacy should carry interest from the death of the tenant for life, to be paid towards the legatee’s maintenance until she attained twenty-five. He also directed other legacies to be paid out of the proceeds of the real estate, and gave the residue of the proceeds to other persons. The legatee of the 500 pounds survived the tenant for life, but died under twenty-five. Held, that the legacy vested and passed to her personal representatives.”

In the body of the opinion the court say:

“Where a legacy is given by a direction to pay when the legatee attains a certain age? the direction to pay may import either a gift at the specified age or a present gift with a postponed payment; and if the interest is given in the meantime, it shows that a present gift was intended.”

In the case of Hanson v. Graham, found in 6 Vesey at page 238, the syllabus reads:

“The word ‘when’ in a will alone, and unqualified, is conditional; but it may be controlled by expressions and circumstances: so as to postpone payment or possession only, and not the vesting: as, where the interest of the legacy in the interval was directed to be laid out at the discretion of the executors, for the benefit of the legatees, it vested immediately.”

In 2 Vernon’s Chancery Reports, at page 673, in the case of Stapleton v. Cheele, the reporter says:

“A legacy devised to J. S. when of the age of sixteen, and interest in the meantime, J. S. dies before sixteen.. The legacy vested, and shall go to the executors of J. S.”

Reference is here had to the case of Clobury v. Lampen (2 Vent, 342.)

9 Vesey, Jun. contains another case at page 224 of similar import (Lane v. Goudge). The Master of the Rolls says:

“I had occasion to look into this class of cases lately in Hanson v. Graham: and found, that words, apparently words of condition, were frequently construed to designate only the time at which the interest should take effect in possession; though standing by themselves, they would operate as words of condition. If a legacy is given when a person attains 21, and he never attains that age, he never will be entitled. But if it is coupled with other circumstances, showing, that it was not meant conditionally, but only to mark the time when the interest vests in possession, the sense is put upon the words which the will requires. I found two cases, where the words were not held words of condition; one, where in the meantime, till the period when possession was to be taken, the fund was to be employed for the benefit of the person then to take in possession; and it was held, the whole interest being given in one way or the other to that person, it could not be intended to make it contingent, whether that person should have the absolute interest.”

In the 411 Mich, at page 552, Toms, Executor v. Williams et al., the court held:

“Will should be construed if possible in favor of vesting interests; and future interests should be treated as vested where there is any present interest in the income of the property.
“A devise to the minor children of a specified person or to the survivors of them, of the net accumulations of a mixed fund of realty and personalty to be paid to them annually after the youngest reached majority ’until'a certain date, the entire estate being held in trust till’ then for the purpose of freeing it from an encumbrance, and to be then turned over to the devisees as tenants in common, was held to create a present vested estate in the legatees.”

And in the decision Chief Justice Campbell stated:

“While there has been some variance among the authorities concerning the legal distinctions. between vested and contingent estates, they chiefly agree first in favoring, the vesting of interests, and second in treating future interests as vested where there is any present interest in the income of the property.”

And this he supports with about 25 American and English citations.

Reference is also made by us to Dale et al. v. White et al., 33 Conn., page 295.

In the case of Pleasanton’s Appeal, 99 Pa. St. Reports, the second syllabus reads: ... .

“Where the gift of a legacy is, by a testator postponed to a future time, but in the interim interest, either by way of maintenance or otherwise, is. given to the legatee, as a general rule the legacy is deemed to vest at.the death,of the testator.”

In the 2 Volume of Brown’s Reports of the High Court of Chancery, at page 240, in the casé ’ óf Walcott v. Hall et al., the court says:

“This was a vested legacy, and as such might have been proved, under the case of Green v. Piget. The giving interest always vest personal legacies.”

So we think that Mary C. List had a vested interest in her share of the estate of the testatrix and that by her will she was entitled to dispose, thereof.

By this statement we have answered all of th.e inquiries contained in the first question put by the surviving executor.

The next inquiry of the acting executor is whether as such the trustees of this estate have power to sell the real estate? There is not found within the..items, of this will any’ express power so' to do, but the language of the will indicates (where the testatrix uses the words: “Shall immediately pass and be paid to each of my three children”) an intention on her part that there shall be such a sale before a division is made of the estate among the living children and the representatives of the deceased children, if any, or, as we have held with reference to the share of Mary C. List, to such person as she might by will designate to receive the same. It being to us reasonably clear that this testatrix did not intend a division in kind and especially since the character of the property has been explained, and remembering that the difficulty of such a division in kind would no doubt be present in the mind of the testatrix, it is our opinion that she intended that her trustees should dispose of the real estate and pay according to the terms of her will to the respective legatees or their representatives such amounts as they are entitled to, and although there is no express power to sell found in the will, yet her direction to divide in the manner in which we have indicated implies such a power.

It is the law that a power of sale will be implied whenever it is necessary to enable the trustee to carry out. the purposes of the trust.

“While it is true that under the original theory of a trust the powers and duties of the trustee were confined substantially to holding and caring for the property, it is equally true that the purposes of the modern trust are of a much broader character, requiring ordinarily much greater powers on the part of the trustee, including a power of sale, which is generally expressly given. The power of sale, where not expressly given, will be implied from the fact that the trustee is charged with a duty which cannot be performed without a power of sale.”

105 Me., page 68.

Such a power should be exercised at a time when it is most beneficial to the trust.

We have thus answered all of the things referred to in the second inquiry of the surviving executor.

The third question is, whether Harry J. Weng as surviving executor has the same power and authority conferred by the will as was originally exercised by himself and Mary C. List as co-executors and co-trustees? This is all taken care of by sections of the Code to which counsel have referred in their briefs.

The fourth question is, If Jacob L. Weng should die before reaching the age of 25 years, when does the trust cease, and when should distribution be made among the legatees and devisees? This is answered by the language of the will:

“Provided that should my said son Jacob L. Weng die before attaining the age of 25 years, leaving no issue surviving him, then my said estate shall at once pass to my surviving children.”

The court having made the constructions requested, an entry may be drawn accordingly.  