Osborne versus Soley et al.
1. A testator gave one-seventh of the residue of his estate to each of six children; the other seventh he gave to his executors in trust, to “place the samo out at interest, .... and pay over the interest, from time to time, as the same shall be got in, unto my son John, during his life; and from and immediately after the death of my said son, I give the principal of the said one-seventh part to be equally divided amongst his children, share and share alike.”. Held, that John took the interest only during his life; the principal was given directly to his children.
2. The trust was active and necessary to preserve the principal to the children.
February 17th, 1876.
Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.
*313Error to the District Court of Philadelphia, of July Term, .1874, No. 60.
The proceedings in this case were attachment executions issued to June and December terms, 1872, by Richard Osborne against John Soley, defendant, and Robert Soley and Lewis Shallcross, executors, etc., of John Soley, deceased, garnishees, on two judgments previously recovered by the .plaintiffs against John Soley, the defendant.
The decedent, John Soley, by his will, dated October 21st, directed, amongst other things, as follows:
“ . . . . All my real estate, of which I shall die seized or possessed, shall be sold by my executors, hereinafter named, for its reasonable value, for like current money, or on such credit as my executors shall see proper, within two years after my decease ; . . . . and to effectuate this, my intention, I do hereby vest in my said executors or the survivor of them, full power and authority to dispose of all my real estate and to sign .... all such deed or deeds of conveyance as may be requisite and necessary for the granting and assuring the same to the purchaser or purchasers thereof in fee simple, without any obligation on the part of such purchaser or purchasers to see to the application of the purchase-moneys.
-x * -x •* *
“ All the rest, residue and remainder of my said estate I dispose of in the following manner, viz., ‘one full equal seventh part or share thereof I give and bequeath to my son, Robert Soley, his heirs and assigns, upon the settlement of my estate.’ [He also gave a seventh part of the residue to each of five other children in precisely the same terms.] He then gave: ‘ One other full equal seventh part or share thereof I give and bequeath unto my said executors,hereinafter named, and the survivor of them, upon the settlement of my estate, in trust, that they or he do and shall put and place the same out at interest on good real estate security, and pay over the interest thereof from time to time, when and as the same shall be got in and received, unto my son John Soley, during all the term of his natural life ; and from and immediately after the decease of my said son I give and bequeath the principal of the said one-seventh part or share thereof to be-equally divided between his children, share and share alike.’
* ;¡í >!< * *
“All of which legacies are to be subject to the right of' dower at common law of my wife.”
He appointed the garnishees in this case the executors.
Both the atachments were tried together, May 30th, 1873,, before Mitchell, J.
*314On the trial it was admitted by the garnishees that if the defendant’s .interest in his father’s estate under the will was attachable in these proceedings, his share was more than sufficient to pay both the judgments on which the attachments were issued.
The Court charged the jury to find for "the plaintiff in each case, reserving for the decision of the Court in banc the question, “Whether the intex-est of the defendant, John Soley, could be attached iix the hands of the garnishees on the process issued in these cases ? ” '
The Court in banc afterward entered judgment for the garnishees on the reserved point, non obstante veredicto.
This was assigned for error on the removal of the record to the Supreme Court by the plaintiff.
N. H. Sharpless, for plaintiff, in error.
The direction in the will was a conversion of the real estate: Bleight v. Manufacturers’ and Mechanics’ Bank, 10 Barr, 131; Chew v. Nicklin, 9 Wright, 84. In the gift for John Soley “ childi’en” is used in the sense of an indefinite failure of issue: Haldeman v. Haldeman, 4 Wright, 29. No trust being declared to protect the estate from creditors of the first taker, an intent to support a trust wfill not be inferred: Keyser’s Appeal, 7 P. F. Smith, 236.
L. Stover, for defendants in ex'ror.
When the enjoyment -of an entire fund is given in fractional parts, at successive pexiods which must eventually arrive, the distinctioxx betwixt time annexed to payment and time annexed to the gift becomes unimportant. In such a case it is well settled that all the interests vested together : Provenchere’s Appeal, 17 P. F. Smith, 463; King v. King, 1 W. & S., 205 ; McGill’s Appeal, 11 P. F. Smith, 51; Sheets’s Estate, 2 Id., 257; Cowles v. Cowles, 3 Id., 175; Wickham v. Berry, 5 Id., 72; Bacon’s Appeal, 7 Id., 504; Barclay v. Lewis, 17 Id., 321. The trust is an active trust: Earp’s Appeal, 25 Id., 119 ; Girard Insurance Company v. Chambers, 10 Wright, 485; Keyser v. Mitchell, 17 P. F. Smith, 473. Hex’e there is no dii’ect gift to John, except a direction to the trustees to pay him the interest; but the testator gives the principal directly to the children as a class, without limitation, or anything in the will to take the words out of their ordinary and legal con-struction.