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Bank (supra), it was held that, "In questions | elected by the people of the city over which he involving merely the administration of corporate presides, and the character and functions of his functions, or duties which touch only individual office are of quite as much consequence as those rights, such as the election of officers, admission of a poor director, a road supervisor, or any of a corporate officer, or member, and the like, other township or county officer. He is certhe writ may issue at the suit of the Attorney-tainly not to be regarded merely as the officer of General, or of any person or persons desiring to a private corporation. prosecute the same."

It will be observed that the right of a private relator to question the election of officers, or the admission of a corporate officer, is restricted by this language, even in the case of corporations, to those instances in which individual rights are touched.

In addition to the foregoing considerations it has long been held that a writ of quo warranto is not a writ of right, and the courts are not bound to issue it, except in the exercise of a sound discretion.

This was held before the passage of the Act of 1836, as to granting informations in the nature of writs of quo warranto, in the case of Commonwealth v. Reigart (14 S. & R. 216), and since the Act in the cases of Commonwealth v. Cluley (6 P. F. S. 270), and Commonwealth v. Jones (2 Jones, 365). In the latter case the considerations which moved the Court to refuse the writ were particularly apposite to those which exist in the present case. They are so well expressed in the opinion of C. J. GIBSON, that we simply quote his very forcible language:

The next and more advanced step taken in the construction of the Act of 1836 was in the case of Commonwealth v. Cluley (6 P. F. S. 270). There the relator was a rival candidate for the office of sheriff for the county of Allegheny, and the object of the proceedings was to impeach the title of the incumbent and establish that of the relator. Here it would seem was a sufficient personal interest in the very subject of the controversy to warrant the procedure. But it was held that although the relator had received "What mischief, then, has been done in this 12,925 votes for the same office, being the next instance by the choice of an ineligible mayor, if largest in number to the respondent, yet, inas- he be so? and who are they that come here to much as if he succeeded in ousting the respondent complain of it? They do not pretend that he he would not be entitled to the office himself, he does not discharge the duties of the office with could not be heard to question the right of the integrity and ability; or that the interests of the respondent by quo warranto, and the writ was corporation are jeoparded by an irregular or denied. On page 372, STRONG, J., says, "This improper exercise of his functions. All the corCourt has construed the words 'any person or porators but two are satisfied with him. A conpersons desiring to prosecute the same' to mean stituency of a hundred thousand souls are willing any person who has an interest to be affected. to dispense with a provision in the charter for They do not give a private relator the writ in a their benefit. The Councils, the chartered case of public right involving no individual guardians of their rights, have not moved; the grievance, and it is to be observed corporate functionaries have not moved, and the that the Legislature has placed all the five classes unsuccessful candidate has not moved-only two of cases enumerated in the Act on the same foot-corporators demand a scrutiny; and who are ing in this particular. If a private relator cannot they? it would be too much to say that they are sue out a writ to enforce a forfeiture without actuated by public spirit, or even by their own having an interest, the statute gives him no interest. They were dismissed from office, not greater right when he complains of usurpation of a county or township office. The right of a relator in each class of cases is defined by the same words."

Of course, if the relator can show title to the office in himself, he is entitled to the remedy. But here the relator does not pretend to claim the office for himself, nor that he has any interest in it. He was dismissed from service as a police officer by the respondent as mayor of the city, and apparently he seeks to punish the respondent for this act, by having him removed from his office. It is very clear the writ of quo warranto does not lie for such a person to accomplish such a purpose. It is true, perhaps, that the mayor of a city is not a county or a township officer, but he is a public officer

for partisanship, but, as appears in the affidavits, for personal habits that unfitted them, and they could not expect to regain their places should the respondent be ousted. There is but one appetite to which the prosecution can be referred; and to the gratification of it a Court will never lend itself. It would waste its time and the public money, did it interfere for a defect of title so unproductive of consequences."

It so happens that the facts and considerations here expressed are almost bodily applicable to the present case.

The relators themselves aver their dismissal from office as policemen, and the respondent in his affidavit says this was done for improper performance of their duties. It is perfectly manifest that a mere spirit of personal revenge is the

animating cause of the application for the writ. But Courts do not administer their functions for the gratification of such motives, and for that reason alone we should feel it our duty to sustain the learned Judge of the Court below in refusing the writ.

Held, that testator's intention was to create an active trust during the whole of M.'s life, and not merely to create a sole and separate use during her coverture, that therefore the trust continued, notwithstanding the death of M.'s husband, and that the bill should be dismissed.

Appeal from a decree of the Common Pleas of Montour County.

While it is not at all necessary to the determination of the case, it is well enough to add that Bill in equity, between Martha H. Lightner, it is extremely doubtful, to say the least, that complainant, and Peter Baldy and Hurley Baldy, there is any merit whatever in the application. executors of Peter Baldy, deceased, and Edward The respondent did take the customary oath, H. Baldy, defendants. Defendants filed answers. which was regularly administered to him as it had From the bill and answers the following facts apbeen to his predecessor in office. There was peared. Peter Baldy, the father of complainant certainly no refusal to take the oath prescribed and defendants, executed a will on Feb. 27, by the Constitution for the officers therein named. 1860. After making certain bequests thereby, The Constitution imposes a penalty of forfeiture he divided all the residue of his property into of office for refusing to take the oath, but it only six parts: one-sixth he devised and bequeathed names senators, representatives, judicial, State, to his son Edward H. Baldy, one sixth to his son and county officers as the persons who are re- Peter Baldy, one-sixth to his son Hurley Baldy, quired to take it. The Act of 1874, which defines one-sixth to his daughter Ellen Ann Matthews, the kind of election expenses that may lawfully and one-sixth to his daughter Mary Catherine be paid by candidates for office, does enumerate Greenaugh. He then provided further as folmunicipal officers as among those who must take lows:the constitutional oath, but it does not impose any penalty of forfeiture of office for a violation of its provisions. On the contrary, it does impose a specific penalty of fine and imprisonment for violating the Act, and therefore, so far as that law is concerned, no consequence of forfeiture results from a failure to obey its directions; hence it would seem that the Constitutional provision, imposing the forfeiture, is inapplicable, and the Act of 1874, which includes the respondentally by the said trustee. within its enumeration, does not impose the penalty sought to be enforced. Judgment affirmed. Opinion by GREen, J.

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A testator possessed of personalty, and seised of realty, having six children, divided his residuary estate into six parts. Five of these parts he devised and bequeathed severally to five of his children. The remaining sixth he devised and bequeathed to a trustee, "in trust for my daughter M., wife of A. B., and to her heirs and assigns forever." He directed said trustee to collect the interest annually, and pay the same to M., and on M.'s death, directed that the subjects of the trust should be transferred and conveyed to her heirs. The trustee was in vested with large discretionary powers as to investment and sale of the trust property. A. B. died, and then tes tator died. M. having filed a bill against the trustee and testator's executors, to obtain a transfer to her of her share of testator's personalty :

to my son,

"I give, devise, and bequeath Edward H. Baldy, in trust for my daughter Martha, wife of Rev. C. Milton Lightner, and to her heirs and assigns forever, one-sixth. Immediately upon the decease of my said daughter Martha, I order and direct that the said daughter in fee simple, as tenants in common, the real trustee, or his successor, convey to the heirs of my said estate herein devised to him in trust, and distribute the personal estate among them in the proportions to which they would be entitled to it by law. The interest and income of the whole to be paid to my said daughter annuMy said son, Edward H. Baldy has consented to act as trustee for my said daughter Martha at my urgent solicitation and request, and in consideration of his so consenting, I deem it to be my duty to give him, as trustee, large and ample discretionary powers in the management of the trust estate, particularly as to selling, making investments, and the character of the investments, which I do not restrict to investments such as are authorized by the courts, but such as in the exercise of his judgment may be deemed best, and also as to putting money at interest, it not being my will or intention that the said trustee shall be held liable for interest when an investment cannot be made immediately, safely, securely, and advantageously in the judgment of the said It is my will and desire that the said trustee shall have ample discretionary power in the settlement of accounts, and generally in all matters connected with, and having relation to the trust committed to him."

trustee.

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son, Edward H. Baldy, certain bonds and certificates of loan, aggregating in value $25,000, directing him to collect the interest on the same and to pay it to testator's daughter, Martha Lightner. This amount testator charged to the account of his daughter Martha, in a book which he kept of advancements to his children. He had previously charged her with other sums advanced, the whole amount aggregating, with the items last named, $42.032.83. Said Edward H. Baldy retained the said bonds and certificates, collecting the interest thereon and paying it as directed by testator.

The devise in question is immediately preceded by a devise of one-sixth of the residue of the real and personal estate to each of the three sons of the testator, their heirs and assigns forever, and one-sixth to each of two married daughters, their heirs and assigns forever.

The devise of the other sixth, in the first part thereof, is in these words: "To my son, Edward H. Baldy, in trust for my daughter Martha, wife of Rev. Milton C. Lightner, and to her heirs and assigns forever, one-sixth." This, standing by itself, or in connection with the direction which follows, to wit: that on the decease of the cestui On July 9, 1880, Rev. Milton C. Lightner, que trust, the trustee shall convey to her heirs in husband of complainant, died. On November fee simple, as tenants in common, the real estate 24, 1880, testator died. His will was duly ad- | devised in trust, and distribute the personal estate mitted to probate, and letters testamentary there- in the proportions to which they would be enon granted to the executors named therein. titled to it by law, gave to her, under the rule in

On December 20, 1880, the executors afore-Shelley's case, a fee simple. If the gift had been said made distribution of testator's personal es- intended by the testator as a life estate with retate. They found that complainant was entitled mainder to the heirs of the devisee in fee simple, to $6026.55 in addition to the advancements a fee simple is by that rule created, even though already made, to equalize her share in testator's it be contrary to the intention of the donor. property with that of his other children. This sum they accordingly paid over to Edward H. Baldy as trustee for complainant.

Complainant thereupon demanded of Edward H. Baldy that he should deliver to her the bonds and certificates handed to him on Oct. 11, 1873, by testator, and also the sum received by him from testator's executors, on the ground that her husband having died, the trust had terminated, and she was entitled to the possession and management of the estate. Edward H. Baldy declined to deliver said bonds, certificates, and sum of money to complainant, on the ground that the trust reposed in him was still active. Complainant thereupon filed this bill, praying that defendant, Edward H. Baldy, be decreed to deliver to her the said bonds, certificates, and sum of money, and that the defendants, executors of Peter Baldy, deceased, be restrained by injunction from delivering any further part of complainant's share in said testator's estate to said Edward H. Baldy.

The cause was heard on bill and answer. The following was the opinion of the Court by ELWELL, P. J.:—

The complainant seeks to obtain a decree that the trust created by the will of her father has ceased to exist, she being now discovert. The facts alleged in the bill are admitted by the answer, and raise the question whether the legal estate in the property devised to Edward H. Baldy in trust for the complainant and her heirs was vested in her by the Statute of Uses free from the trusts mentioned in the will; or whether the trusts declared are active, continuing trusts, and the estate of the complainant but an equitable title to the interest and income during her life.

This rule applies only when both the freehold and the remainder are of the same quality—both legal or both equitable. Its application may also depend upon whether the trust as to the freehold estate is an active or passive one, or whether it be for the protection of a married woman. What was the estate of Mrs. Lightner, or rather what was the intention of the testator as gathered from the whole will? The testator, by way of description rather than as a reason for creating a trust, mentioned the fact that she was the wife of the Rev. Milton C. Lightner. He created no separate use for her protection from her husband. There is nothing in the will which goes to show that the trust was created solely because of her coverture. Manifestly one great and leading object in creating the trust was that the estate might be properly and judiciously managed during the life of his daughter. In order to effect this he gave to the trustee "large and ample discretionary powers in the management of the trust, particularly as to selling, making investments, and the character of the investments, not restricting him to investments such as are authorized by the Courts, but such as in the exercise of his judgment may be deemed the best, and also as to putting money at interest.”

Discretionary powers to sell the trust estate and also to manage it and make investments according to his judgment during the life of the cestui que trust, she to be paid the interest and income, are wholly inconsistent with the contention that the trust has ceased to exist, or is at most a mere dry trust.

In Barnett's Appeal (10 Wright, 392), it was held that a devise of land and personal estate in trust to lease the land and keep the personal

estate invested, to collect the rents and profits | prompted him to create the trust. If he deems and pay them to the children of the testator, is it for the interest of the cestui que trust or of the an active operative trust, even though all the persons in remainder, that the trustee shall percestui que trusts were sui juris. In Bacon's Ap-form such duties as we have seen constitute the peal (7 P. F. Smith, 504), all of the cases de- trust an active one, it will continue certainly cided before 1868 were either cited by counsel during a life in being, whether the cestui que trust or referred to by the Court. In that case it was be male or female, married or single, spendthrift said, per STRONG, J.: "The trustees were to re- or miser. ceive the income of the property and pay it over," "for this purpose it was necessary that they should hold the title during the life of the cestui que trust." "The injunction of actual duties during the life of each of the daughters evinces a purpose beyond that of maintaining separate uses. It involves the necessity of managing the real estate and of preservation for those in remainder."

In Earp's Appeal (25 P. F. Smith, 119), the bequest was in trust for children of the testator of the income for life, no mention being made of coverture. The principal was devised to the persons who would be entitled to it under the intestate laws. Held to be an active trust.

In The Girard Life Insurance Company v. Chambers (10 Wright, 485), the trust was of real and personal estate, the trustees to collect and receive the rents, issues, interest, and income, and after deducting expenses, to pay over the same unto the cestui que trust for his own use and benefit, "and upon his decease to transfer and convey to such persons as would be entitled had he died seized thereof." Held to be an active trust.

When the bequest is of the income in trust for a child for life and the purpose appears to be to protect the corpus of the estate for the ultimate devisee, the trust is operative and will be sustained. (Williams's Appeal, 2 Norris, 377.)

Did the testator in this case intend to give Mrs. Lightner anything more than the income of the estate? It has always been supposed, that the intention of the testator is the Polar star to guide to the meaning of his language. "There is no Procrustean rule on which words can be stretched to make them always fit certain legal results whether so intended or not." (Per AGNEW, C. J., in Williams's Appeal, supra.) A will must be construed as an entirety, so that if possible, every part of it may take effect. "No principle," says STRONG, J., in Sheets's Appeal (2 P. F. Smith, 263), "is better settled than that, if a testator in one part of his will give to a person an estate of inheritance of lands, or an absolute interest in personalty, and in a subsequent passage unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly; such subsequent provisions will not avail to take from an The result of the authorities on this subject is estate previously given, qualities that the law thus summed up by Mr. Husbands in his conve- regards inseparable from it, as for example nient work on Married Women and Trusts, page alienability; but they are operative to define the 283: "Among the active trusts has always been estate given, and to show that what without them classed that to receive and pay over the profits might be a fee, was intended to be a lesser right." to another. So where the trustee is to dispose A power of sale accompanied with an order that of the property, or apply the rents to the main- the proceeds be invested for the benefit of the tenance of the cestui que trust, or to make re-donee to whom the interest and income are to be pairs, or to pay annuities, or to manage the paid annually is evidence of intention that the estate as he should think most for the interest of legatee or devisee is to have no more than an the cestui que trust, the trust is an active one."

interest for life.

It is contended by the counsel for the com- In Silknitter's Appeal (9 Wright, 365), the plainant that the trust here is special, and limited gift was to the beneficiary and her heirs and to the preservation and management of the es- assigns, there was no trust created and no devise tate during the coverture of the cestui que trust. over. The absence of such provisions was taken No such limit is affixed to the trust by the tes-into consideration by the Court in arriving at the tator. He declared it should exist until the conclusion that the estate vested absolutely in the death of the cestui que trust. He, as the donor of the property, had the clear right to declare by his will who should hold the legal title, with power of sale and management, and to whom the income should be paid, and the law will respect and carry out his intentions, unless they are contrary to some well-defined rule or policy. Where a will requires active duties to be performed by the trustee, it is not necessary that the testator should set forth the reasons which

donee. After referring to this case Justice STRONG says in Sheets's Estate, "But it has not been doubted that a limitation over after the death of the first taker, and a power of sale in another with discretion to invest and pay the interest to the beneficiary during life, and after his death, the principal over, are absolutely inconsistent with the existence of a fee or absolute interest in such donee. They are not only inconsistent, but will reduce a fee expressly devised to an estate for life."

These views are directly applicable to the present case. In no other way can this will be considered consistent so far as regards the interest of Mrs. Lightner, but by holding that the bequest in trust for her was intended to be of the income only during her life. The testator intended to part with the entire estate, and to that end he vested the legal title in a trustee whom he charged with certain specific duties which required the estate to remain in him for the purpose of assuring to the cestui que trust of the income, the certain enjoyment thereof for life.

Holding that the interest of Mrs. Lightner under the will is but an equitable interest, and not a freehold, and that the trust in her behalf was during her coverture, and still is an active trust which cannot be stricken down without doing violence to the intention of the testator, I am of the opinion that the prayer of her bill ought not to be granted. In view of the fact that the importance of the case requires, and the parties will no doubt obtain, the judgment of the Supreme Court upon the questions raised by the bill and answer, I have not deemed it necessary to review the numerous authorities cited by the counsel on the argument, and have therefore referred mainly to those which discuss the subject of active or passive trusts. My conclusion has been reached not without difficulty. being of opinion that it accords with the intention of the testator, and that such intention is not defeated by any rule of law, the complainant's bill must be dismissed.

But

This cause came on to be heard and was argued by counsel, and now, Feb. 1, 1881, upon due consideration thereof, it is ordered, adjudged, and decreed that the bill of the complainant be dismissed and that she pay the cost.

Complainant thereupon took this appeal, assigning for error the decree of the Court dis missing the bill.

Joshua W. Comly, for appellant.

The words of the will giving to "Edward H. Baldy in trust for his (testator's) daughter. and to her, her heirs and assigns forever, onesixth," indicates an intention to vest a fee in the beneficiary.

The direction to convey after her death to her heirs does not prevent her taking a fee.

Nice's Appeal, 14 Wr. 143.
Bradley's Appeal, 36 Leg. Int. 38.

Nor do the subsequent discretionary powers vested in the trustee forbid such a construction. They confer only an absolute power of sale of personalty, not of realty.

The intention of testator clearly was to create a sole and separate use for his daughter during her coverture. In order to create such a trust no technical words are necessary.

Reck's Appeal, 28 Smith, 432.

The coverture being over, the special trust terminates, and the legal estate vests in the beneficiary.

Steacy v. Rice, 3 Cas. 75.

Tucker's Appeal, 25 Smith, 354.
Magargee v. Naglee, 14 Smith, 216.
Bush's Appeal, 9 Cas. 85.

Smith v. Starr, 3 Wharton, 62.
Williams's Appeal, 2 Norris, 377.

The will was written in 1860, after the decisions of Kuhn v. Newman (2 Casey, 227), and Buch's Appeal (9 Casey, 85), and before the decisions in Barnett's Appeal (10 Wr. 392). It may be fairly argued that testator understood the law to be as settled by the two former cases under which the trust here would certainly fall after discoverture.

There is no beneficial purpose in keeping the trust alive. It falls therefore of its own weight. Kay v. Scates, 1 Wr. 31. Rife v. Geyer, 9 Smith, 393. Ogden's Appeal, 20 Smith, 501. Yarnall's Appeal, Id. 335. Earp's Appeal, 25 Smith, 119. Ashhurst's Appeal, 27 Smith, 464. William J. Baldy, for appellees.

There are no words in the will from which it can be implied that the testator purposed to create a sole and separate use.

Heck v. Clippenger, 5 Barr, 387.
Torbert v. Twining, I Yeates, 432.

Tritt's Adm. v. Colwell's Adm., 7 Casey, 228.
Evans v. Knorr, 4 Rawle, 66.

2 Story's Eq. Jur., sect. 1381.

Even if such was testator's intent the trust will not fall on discoverture, there being still active duties to be performed and a life estate alone in the beneficiary being contemplated.

Bacon's Appeal, 7 Smith, 504.
Barnett's Appeal, 10 Wr. 392.
Ashhurst's Appeal, 27 Sm. 464.
Williams's Appeal, 2 Norris, 377.

Fidelity Co.'s Appeal, 5 WEEKLY NOTES, 513.
Girard L. I. & T. Co. v. Chambers, 10 Wr. 485.
Earp's Appeal, 25 Smith, 119.
Sheets's Estate, 2 Smith, 263.

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