
    Patterson’s Appeal. [Patterson’s Estate.]
    A testator, by his %vill, directed his executors to pay to his three married sisters “ each the sum of ¡¡>30,000, to be paid to them, however, without interest and in such installments and at such times as my executors may deem proper in their discretion, so as not to impair my investments or cause loss or injury to my estate." The testator directed that a legacy of ¡¡>30,000 should be paid to an unmarried sister from the income of his estate. He also directed that a mortgage of ¡¡>50,000 should be paid, as speedily as possible, out of the income, of his estate. Held that the executors were bound to pay the legacies to the married sisters, within a reasonable time, out of the corpus of the estate, and, if necessary, to convert into money so much of the assets of the estate as should be required to pay such legacies.
    Oct. 24, 1888.
    Appeal No. 208, Oct. T. 1888, by Anna H. Patterson et al., Executor of Henry W. Patterson, deceased, Mutual Life Ins. Co. of New York, et al., from a decree of tbe Orphans’ Court of Allegheny Co., at No. 227, June T. 1887.
    This case arose on a petition of Mary P. Dawson, Yirginia P. Bailey and Elizabeth P. Jacobus, to the orphans’ court of Allegheny county, praying that Anna H. Patterson and Thomas O. Lazear, Executors of the will of Henry W. Patterson, deceased, be directed to pay to the petitioners, the . balance of legacies of $30,000 bequeathed to each of them under the will of the decedent, and to convert into money so much of the assets of the estate as should be necessary to pay the legacies.
    The answer of the executors did not deny the allegations of the petitioners as to the facts above stated, and admitted that said legatees had received only $3,175.00 at that date on account of their legacies, but averred as reasons for not paying them, that they could not do so without violating the terms under which said legacies were to be paid to petitioners, quoting the language of the will as contained in the opinion of the court below.
    The answer further averred that the mortgage of $50,000, referred to in the will had not been reduced except as to the rate of interest, and that the estate had otherwise been largely indebted and that a debt of $1,200 still remained to be paid to the Pittsburgh National Bank of Commerce, being a balance of an original indebtedness of over $10,000. The only cash in their hands at that date standing to their credit was $5,410 in bank, which, with the exception of a small amount received on account of certain railroad bonds, was all derived from rents of the “ Patterson block,” dividends on stock in the Pittsburgh National Bank of Commerce, and a dividend of $5,099.50, recently declared on stock of the Pittsburgh Steel Casting Company, being the only cash dividend paid by said Company since the death of testator.
    The answer further averred that the respondents were unwilling to sell the stock in said bank and said Pittsburgh Steel Casting Company, to pay said legacies, for the reason that, with the exception of the rents of said “Patterson block,” they were the only regular source of income to the estate, and to sell them for such purpose would be an impairment of the investments, asserting their willingness, however, to sell the real estate of the testator, or any other assets which the will authorized them to sell for such purpose, whenever they could do so, without unreasonable loss and sacrifice, and that they had made endeavors to sell the same, naming certain real estate, which they were endeavoring to sell, worth about $30,000, with the intention of applying the proceeds, thereof, toward the payment of said legacies, and also expressing their purpose to pay at least $1,000 annually to each of said legatees out of, the income of the estate, in case the Pittsburgh Steel Casting Company should continue to pay regular dividends.
    The facts were found as follows by Hawkins, P. J.:
    “ The main questions involved in this proceeding are: 1st. 'Whether, or not, the legacies given by Henry W. Patterson to his sisters, Mrs. Dawson, Mrs. Bailey and Mrs. Jacobus, are payable out of the income or the corpus of his estate, and; 2d, whether, or not, this court can control the exercise of the discretion in respect of the mode and time of payment of such legacies lodged in the trustees appointed by testators.
    “ The material facts out of which these questions arise are these:
    “ Henry W. Patterson died May 31st, 1882, leaving a will in which, inter alia, he provided: For the payment of his debts; and, especially, for the payment of a certain mortgage, $50,000, on the ‘Patterson Block,’ situate at the corner of Wood street and Fifth avenue, Pittsburgh, ‘ as speedily as possible,’ out of the income of his said estate. And gave the residue of his estate to his executors, in trust: To his widow, an annuity of $6,000, for life. To pay to his married sisters, Mrs. Mary P. Dawson, Virginia P. Baily and Elizabeth P. Jacobus, ‘each the sum of $30,000 — to be paid them, however, without interest and in such installments and at such times as my executors may deem proper in their discretion, so as not to impair my investments or cause loss or injury to my estate. The payments and bequests are not to be subjected to the control or be liable for the debts of the husbands of my said sisters.’ To his unmarried sister, Ella R. Patterson, ‘the like sum of $30,000, whenever it can be realized from the income of my estate, with interest from the date of my decease, and in such installments as my said executors may deem proper, according to their discretion, in the prudent management of my estate, and said interest to be paid her semi-annually. And if, at the expiration of ten years after my death, the interest of which I now possess in the Pittsburgh Steel Casting Company shall continue profitable, I then direct that $20,000 of an additional legacy be paid to each of my said four sisters, but such payment shall be altogether discretionary with my executors.’ All the residue of the estate is given to Henry W. Patterson, Jr.
    “ The estate now consists of productive property: The ‘ Patterson Block,’ valued at $175,000, income per annum, about $9,500; Shares Bank of Commerce stock, valued at $111,966, income, per annum, about $5,830; Shares Steel Casting Co. stock, valued at $101,950, income, per annum, about $6,117; Bonds of Continental Imp. Co., valued at $3,600, income, per annum, about $300. And unproductive property: Chartiers land valued at $8,000; Fourteenth Ward land valued at $8,000; Fayette County land, sold, valued at $10,000 ; four lots S. S., sold, valued at $1,000; and cash $2,063.44; total, $29,063.44.
    “ The executors propose to sell Fourteenth Ward and Fayette County property presently.
    “In 1881 the interest of Mr. Patterson in the Steel Casting Company paid him, in earnings, at the rate of forty-four per cent., but no dividends were declared from the time of his death until July, 1887; the earnings in the meantime having been appropriated toward extensive improvements in the plant of the company. The company is now in a prosperous condition, and six per cent, dividends at least are expected hereafter. No stocks have been sold.
    “It is probable that the'National Bank of Commerce will continue to increase in value with the rise in value of certain real estate held by the bank, but it may be sold now for its present full value. The petitioners have expressed their willingness to take in payment of their legacies this stock at the rate of $195 per share, the highest price at which any have been sold, and its full value.
    “All the debts of the estate have been paid except the above mentioned'mortgage of $50,000 on the ‘Patterson Block,’ held by the New York Mutual Insurance Company and its payment not desired.
    “ By the express terms of the will the ‘Patterson Block’ cannot be sold by the trustee; and, as already stated, the mortgage thereon is made payable out of the income of the estate.
    “The executors have paid $3,175 on account of petitioners’ legacies out of the corpus of the estate; but in respect to the balance they now take the position that it is payable out of the income and-unproductive assets alone, and propose, for the present, at least, to pay thereout at the rate of $1,000 per annum on account of each legacy. And the petitioners, Mrs. Dawson, Mrs. Baily and Mrs. Jacobus, claiming that their legacies are payable out of the corpus of the estate, have instituted this proceeding to test the question they raised.”
    The opinion of the court, on these facts, was as follows:
    “The scheme proposed by respondents practically converts petitioners’ legacies into annuities for the period of twenty to thirty years. That this is not the proper construction of the will, nor a reasonable exercise of discretion vested in respondents, seems clear from these considerations. The face of the will shows that the testator had a clear comprehension of the difference between an annuity and an absolute gift of the gross sums of money. The gift to the petitioners is immediately preceded and succeeded by apt words creating charges on the income of the estate; and manifests, by its marked contrast in form of expression, a difference in intention. Having expressly indicated the income as the source of payment of legacies given immediately before and after, he cannot be supposed to have limited, by mere inference, the payment of these legacies proportionately, so considerable in amount, to the same source. Not only in the difference of the language used, but the gift itself indicates a different source of payment. It is made in a gross sum, is payable in installments as an entire sum (Webster’s Dictionary — ‘ installment ’), and is presumptively payable within a reasonable time. There is no reference to income as a source of payment as in the preceding and succeeding bequests. There is no specification of any fund as source of payment and, therefore, under a well settled rule, the purpose was contemplated. The direction that payment of these legacies shall be so made as not to ‘ impair ’ testator’s ‘investments or cause injury or loss’ to his estate was obviously not intended as a prohibition of conversion; but rather to prevent ‘ injury or loss ’ to the estate' by untimely sales. There is no absolute prohibition of conversion. Can there be any doubt that the' trustees must sell whenever the interests of the estate demand it ? And just as little doubt that, if any of the ‘ investments ’ should be so sold, the proceeds would be applicable to the payment of these legacies ? Suppose the testator had left sufficient available cash on hand to have paid them, could any defense possible have been made to its appropriation to their payment ? The South Side and the Fayette county lands have been sold, and the proceeds can be used, so as not to ‘ impair ’ testator’s ‘ investments or cause injury or loss ’ to his estate. The defense shows that the Fourteenth ward and the Chartiers land, and the National Bank of Commerce stock may be sold at their full value; the testator surely intended these legacies should be paid, then why not sell and pay them ? ‘ The objection that this dispenses with the discretion of the trustees has no merit. Their discretion is but a legal one, and whenever the law determines that a proper case has arisen in which the trustee’s discretion should have been exercised in a particular way, he will be constrained to act in accordance therewith.’ Eisman v. Poor, 47 Pa. 509. Or as stated in Williams’s Ap., 73 Pa. 249-284: ‘A chancellor will so controla trustee that he shall not disappoint the true intent and purpose of the donor as gathered from the instrument containing the power.’ The testator gave these petitioners a legacy of $30,000 each, which he" plainly contemplated should be paid them within a reasonable time, and which the evidence shows can now be paid them without injury or loss to the estate. A reasonable time has elapsed since the death of the testator, and his true intent and meaning will be disappointed should the scheme proposed by the respondents’ trustees be carried out. The prayer of the petitioners should therefore be granted and the trustees be controlled.”
    The court entered the following decree:
    “And now, to-wit: Oct. 24th, 1887, this cause came on to be heard, upon petition, answer and testimony, and was argued by counsel, and thereupon, by consent of counsel, it is ordered that this record and proceeding be and is hereby amended so as to make Mrs. Anna H. Patterson and Charles E. Speer, testamentary guardians of Henry H. Patterson, Jr., Mrs. Anna H. Patterson, individually, and also Miss Ella E. Patterson and the Mutual Life Insurance Company, of New York, parties respondent, nunc pro tunc. It is further ordered, adjudged and decreed as followsThat the prayers of the petitioners be granted, and that the executrix and executor of said Henry W. Patterson, deceased, be and are hereby directed to pay ■ the balances due the petitioners respectively on their respective legacies, which are found to be as follows, viz.: To Mary P. Dawson $28,025, to Yirginia P. Baily $29,400, to Elizabeth P. Jacobus $29,400 out of the corpus of the estate of said decedent, the court being of opinion that such legacies can be so paid without causing injury or loss to the said estate, viz: Out of the funds already in their hands, and proceeds of sales of securities and assets belonging to the estate of said decedent in the following order, to-wit:
    “ 1. Out of funds or cash on hands, including purchase money or consideration of the Fayette county property, $10,000 ; and purchase money or consideration of the South Side lots when said amounts are realized, $1,000.
    “ 2. Out of proceeds of sales of the 14th ward property, and Chartiers township property, which properties are hereby directed to be sold by the said executrix and executor, forthwith, and the proceeds thereof applied on account of said payments as aforesaid.
    “ 3. Out of proceeds of sales of capital stock of the National Bank of Commerce, a sufficient amount of which is hereby ordered to be sold forthwith by said executrix and executor, to pay the respective balances of said legacies and the proceeds applied to the payment thereof aforesaid, and that said executor and executrix have leave to transfer to the petitioners respectively, sufficient amounts of said stocks to pay said balances at value of $195 per share; this, provided the same be done within 60 days from this date; and that the costs of this proceeding be paid out of the estate of said decedent.”
    Exceptions were filed which were subsequently dismissed by the court. The parties then took the above appeals.
    
      
      The assignments of error specified the action of the court, I, in directing the executors to pay the balances of their legacies in full to the petitioners out of the corpus of the estate; 2, in peremptorily directing the executors to sell the 14th ward property and Ohartiers township property forthwith, for the purpose of applying the proceeds on account of said legacies; 3, in directing the executors to sell a sufficient amount of the stock of the Pittsburgh National Bank of Commerce forthwith to pay out of the proceeds thereof the respective balances of said legacies; 4, in not dismissing the petition of said legatees at their cost.
    
      Thos. C. Lazear, with him C. P. Orr, J. H. Baldwin and Geo. P. Hamilton, for appellants.
    The decree is contrary to the manifest intention of the testator in three particulars.
    1. It directs the executors to pay these legatees at once and in full the respective balances of their legacies, whei’eas the direction of the will is to pay them in installments and at such times as the executors may deem proper.
    2. The direction in the decree to sell the capital stock of the Pittsburgh National Bank of Commerce is in conflict with the positive injunction in the clause in question, that the executors, in making payment to these legatees, should “ not impair his investments or cause loss or injury to his estate.”
    What is an investment is best defined in Una v. Dodd, 39 N. J. Eq. 186. See, also, Bouvier and Webster.
    3. The direction of the court to sell forthwith the real estate mentioned in the decree is not in harmony with the injunction forbidding payment to these legatees if such payment would be attended with “loss or injury to his estate.”
    In paying these legatees, a discretion was given to the executors by the testator, which the court had no power to interfere with, without proof of bad faith on their part. This is the general rule. Perry on Trusts, 457, § 511; 1 Sugden on Powers, 341; 2 Ib. 511; William’s Ap., 73 Pa. 249; Naglee’s Est., 52 Pa. 154; Pulpress v. African Church, 48 Pa. 204; Chew’s Exrs. v. Chew, 28 Pa. 17.
    If this decree be enforced, the intention of the testator cannot be carried out in respect to the mortgage held by the Ins. Co. and the legacy to Ella R. Patterson, both of which are directed to be paid out of the income of the estate, and the former too as speedily as possible.
    
      Edward Campbell, with him Charles E. Boyle and Kennedy & Doty, for appellees.
    The court below fully answers the argument as to the first objection by the other side.
    Any purchase of property for the purpose of holding the same is an investment by the purchaser, in the sense defined. Every such purchase is made with the expectation that it will yield an income, if not in the way of rents, interest or dividend, by its enhancement in value, or in some other pecuniary advantage to the purchaser. Hence the property of the testator which is immediately unproductive is just as clearly an investment as the shares in the Pittsburgh National Bank of Commerce, which may at any time become non-dividend-paying.
    Courts do not favor constructions that confer upon trustees absolute and uncontrollable powers. Perry on Trusts, § 511; and notes and eases there cited ; Haydel v. Hurck, 5 Mo. Ap. 267.
    A chancellor will so control the trustee that he shall not disappoint the intent of the donor, as gathered from the instrument containing the power. An innocent motive will not save the exercise of the power, if it violate the true purpose of the trust. Williams’s Ap., 73 Pa. 249; Erismen v. Directors of the Poor, 47 Pa. 509; Pulpress v. African M. E. Church, 48 Pa. 204.
    Discretionary powers, like other authorities, must be exercised in the manner prescribed by the trust instrument. Hill on Trustees, 488.
    The court is much more ready to control the trustees in the exercise of discretionary powers of this last description than in matters of private opinion and judgment. The reason is that, on these matters of fact, the court is equally competent, or even more competent than the trustees, to deteimine what will be most beneficial to the trust estate. Hill on Trustees, § 494.
    In respect to the mortgage held by the Ins. Co., the surplus of income from the property bound, after payment of interest on the mortgage, is suificient to pay the principal of the mortgage in a few years. What injustice, therefore, to others interested under the will, to withhold all the balance of the property, against which the Ins. Co. has never made any claim, until from the income thereof the mortgage be paid.
    As to the legacy to Ella R. Patterson, she has taken no appeal and the inference is, she is satisfied therewith.
    Nov. 5, 1888.
   Per Curiam,

We find no error in the disposition of this case by the orphans’ court. A proper interpretation has been given to the will of Henry W. Patterson, and as, by that interpretation, the security of the mortgagee cannot be affected, we cannot see why it joined in this appeal.

Decree affirmed at costs of appellants.  