Aubert's Appeal

Supreme Court of Pennsylvania February 27, 1888

Aubert's Appeal, 119 Pa. 48 (Pa. 1888)

12 A. 810; 1888 Pa. LEXIS 523

Clark, Gordon, Green, Paxson, Sterrett, Trunkey, Williams

Opinion of the Court

Opinion,

Mr. Justice Paxson :

The only matter of which the appellant complains is, that the court below declined to make distribution of one half the residuary trust fund under the seventh clause of the will of George P. DeSilver.

Mt requires but a glance at the clause in question to see that the^time appointed by the testator for the distribution of the principal of the trust fund has not arrived. Such distribution is expressly postponed until the death of his brother and his sister. The brother is deceased, it is true, but the sister is still living.

It is urged, however, that the death of the brother, without issue, was an event not contemplated by the testator, and that the reason for postponing distribution does not now exist as to a moiety of the trust fund. This is not clear. Mrs. Getz is admittedly entitled to one half the income of the whole resid*53nary estate. As was said in Wilen’s Appeal, 105 Pa. 121, we cannot say that a moiety of the income of the whole may not be more valuable to the surviving life tenant than the whole of the income of a moiety. In any event it is enough for us to know that the testator, in clear language, designated the time when distribution should be made, and it is not our province to change his directions.

The appellant has no cause to complain that distribution is not made of the principal, as his right to either principal or income is at least doubtful. But as there is no appeal by any other party in interest, we forbear discussing the matter further. We can only decide what is before us.

The decree is affirmed and the appeal dismissed at the cost of the appellant.

Reference

Full Case Name: AUBERT'S APPEAL DeSILVER'S ESTATE
Cited By: 7 cases
Status: Published
Syllabus: A testator left the one half of his residuary estate to his executors, in trust to keep the same invested and to pay the income to his brother and sister during their respective lives, share and share alike, upon the death of either to pay to his or her children the one half of said income, and upon the death of both, to distribute the trust estate to the children of the brother and sister, per stirpem. The widow of the testator, for whom provision had also been made, died; the brother also died, and without issue; whereupon the widow’s husband, the sister still living, prayed for payment of the one half of the trust fund to himself. Held, that as by the testator’s will distribution was expressly postponed until the death of both brother and sister, following Wilen’s Appeal, 105 Pa. 121, the court would not interfere with his directions.