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and at their instance and request, this deed was, son of Mr. H. B. McCollum, who acted as agent canceled by Mr. Hepburn by drawing a line in for the trustee in this matter, not notifying the ink through the signatures. Annie Windolph mortgagor of the assignment of the mortgage to at this time decided she would make a new the trustee, and the mortgagor continued to mail deed of trust. In April, 1909, Annie Windolph the checks for interest to Mrs. Windolph as he gave Mr. Hepburn instructions to prepare a had done before the assignment. Mrs. Windolph new deed of trust, which he did, and the same called this to the attention of both Mr. Hepburn was duly executed on July 16, 1909, and the and Mr. McCollum, and thereafter Mr. Downsecurities and other property delivered to Eliza- ward was notified to send all future payments beth Gravell, as is hereinbefore set forth. The of interest to Mr. McCollum for the account of cash and securities enumerated in the schedule the trustee; thereafter the interest was paid to attached to the deed of trust were delivered to the trustee. The remaining income of the trust the trustee in the following manner:
estate was collected by Mr. Hepburn. Mr. McThe cash on deposit in the Girard Trust Com- Collum and Fox & Sons for account of the truspany, $17,058.16, in the Western Savings Fund, tee, and the checks by which the interest on in$6,005.16, in the Beneficial Savings Fund $17,- vestments was paid would generally, although 744.43, and in the Northern Trust Company not in every instance, be indorsed by the trustee $16,867.95, stood in the name of Elizabeth Gra- and delivered to Annie Windolph. No account vell as trustee, having been transferred to her was rendered by the trustee in her lifetime nor credit under the canceled deed of trust of 1908, was the income paid to Annie Windolph quarwere treated as moneys of Annie Windolph terly as provided in the trust deed, nor was any turned over by her to Elizabeth Gravell, trus- compensation paid the trustee for her services. tee. No change was made in the deposits, as The income was usually paid to Mrs. Windolph the accounts were in the proper name under as it was from time to time received, although the new deed of trust. The deposit account in there was a balance of income in the possession the Philadelphia Savings Fund Society $6,162.62 of the trustee at the time of her death which was duly transferred on August 2, 1909, and was subsequently accounted for by her estate. opened in the name of Elizabeth' Gravell in At the time of the creation of the trust Mrs. trust for Annie Windolph. Cash to the amount Gravell was consulted about accepting the trust, of $11.68 was paid to Elizabeth Gravell, trustee. and was reluctant to assume the duties incident Three mortgages, namely, $3,500 on 2202 West thereto. She did accept the trust, however, Lehigh avenue, $2,000 on 2034 West Atlantic upon the agreement that she should be relieved street, and $2,500 on 5230 Fitzwater street, from the burden of collecting the income by Mr. were carried as cash in the schedule. The Hepburn and Mr. McCollum, and this arrangemortgages on 2034 West Atlantic street and ment was carried out in the manner hereinbefore 5230 Fitzwater street, aggregating $4,500, had set forth. been called and upon the receipt of the money In connection with the acceptance for the from the same it was paid to Elizabeth Gra- trust of the Da Costa, Shields and Eveland vell, trustee. The mortgage for $3,500 on 2202 mortgages, bonuses to the amount of $940 were West Lehigh avenue had been accepted by Mrs. paid by the borrowers to Annie Windolph. Windolph prior to the preparation of the sched- These mortgages were either second mortgages ule, and the money for the loan was furnished or were upon an undivided interest in the mortby Mrs. Windolph and the mortgage taken in the gaged premises; for this reason they were not name of Elizabeth Gravell, trustee. The re- legal investments, and consequently under the maining mortgages described in the schedule terms of the trust required the approval of and aggregating $31,300 were duly assigned to Annie Windolph before they could be accepted. Elizabeth Gravell, trustee, and the assignments These bonuses were not paid to the trustee unrecorded. The eight shares of stock in the Na- der advice of counsel, because if they had been tional Bank of Chester Valley at Coatesville, they could be set off against the mortgage debts valued at $400, were duly transferred to Eliza- | as usurious interest. These sums were paid beth Gravell as trustee. The interest and es- to Annie Windolph as a commission for her aptate of Annie Windolph in the estate of her proval of the investments. grandfather, George Crock, mentioned in the In reference to the administration of the schedule, were transferred to Elizabeth Gravell, trust estate by Elizabeth Gravell, the referee trustee, by the assignment and conveyance finds that there was no undue or dominating thereof in the deed of trust. After the delivery influence exercised by Annie Windolph, or any of the trust assets to Mrs. Gravell, she invested one else, upon the trustee. Mrs. Gravell was trust funds in six mortgages, three through Mr. an old lady and only consented to serve as Hepburn, two through Mr. Bishop, of the Girard trustee upon the condition that she should be as Trust Company, and one through Mr. McCol- far as possible relieved from attending to the lum. These mortgages were all submitted to business details of administering the trust. She Annie Windolph for her approval before they consulted with Mrs. Windolph in reference to were accepted by the trustee as investments. investments, and she also consulted her counsel,
For more than 10 years prior to the crea- Mr. Hepburn, and her agent, Mr. McCollum, on tion of the trust in question, in the making of the same subject. There was no evidence before mortgage investments, not only Mrs. Gravell the referee that would justify a finding that the but also the brothers of Mrs. Windolph were in deed of trust in this case was gotten up as a the habit of submitting the same to her for her mere subterfuge to permit Annie Windolph in judgment thereon before accepting or rejecting her lifetime to possess and control her estate them. There was nothing unusual in Mrs. Gra- and at the same time to be free of the post morvell as trustee submitting to Mrs. Windolph be-tem claims of her husband. She fully intended fore accepting them, the mortgages taken by to and actually did assign and deliver to the the trustee for the investment of trust funds, trustee the property in question for the purand it was good judgment on her part so to do. poses set forth in the deed, and under the advice Mrs. Windolph did not assume to dictate to the of counsel she endeavored to effectuate her intrustee what mortgages she should accept for tention by fully complying with the requirements the trust. The final determination was made of law. by the trustee, but always after consultation
The referee recommended that the bill be with Mrs. Windolph.
The collection and distribution of the income dismissed and upon exceptions filed to the arising from the trust estate was made by report the court, Patterson, J., confirmed the Elizabeth Gravell as trustee, with the excep- report of the referee and dismissed the bill. tion of three interest payments on the James
Argued before FELL, C. J., and BROWN, G. Downward mortgage of $1,000, which were paid directly to Annie Windolph and not turned
MESTREZAT, POTTER, ELKIN, and over by her to the trustee. This arose by rea- MOSCHZISKER, JJ.
John G. Johnson, James P. Fogarty, and sand absolute owner of the property, and exerDaniel C. Donoghue, all of Philadelphia, for cised complete dominion over it; and the appellant. C. J. Hepburn, of Philadelphia, trustee, who was the wife's mother, and the and J. Frank E. Hause, of West Chester, for brothers and niece of the wife all participatappellees.
ed with the wife in a scheme whereby the
husband would be defrauded of his marital MESTREZAT, J. This is a bill in equity rights, and the deed was executed by the wife filed by a surviving husband to have declared without his knowledge, consent, or approval; null and void as to him a voluntary deed his first knowledge thereof being obtained of trust of personal property made by his after her death. wife, and for a decree that the property em
The two brothers and the niece deny, in braced in the deed continued to be her prop- their answers and their testimony, the avererty, and at her death formed part of the ments as to the alleged collusion in a frauduassets of her estate. The defendants in the lent scheme. No evidence of it was producbill are a substituted trustee under the deed, ed at the trial, and hence it is eliminated the administrator of the original trustee, and from the case. All the defendants deny the the persons named as beneficiaries in the averment that after delivery of the deed the deed. The case was heard on bill, answers, settlor exercised absolute dominion over the replication, and proof by a referee, who rec- property, and aver on the contrary that, imommended the dismissal of the bill. Ex-mediately upon the execution and delivery of ceptions were filed by the plaintiff to the the deed, she parted with the legal title and referee's report which were overruled by the the physical possession of the entire corpus court, and a final decree entered dismissing of the trust fund and thereafter exercised no the bill. The plaintiff has taken this appeal. dominion or control whatever over the trust
The deed of trust is dated July 16, 1909, estate other than as specifically provided in and names as trustee the mother of the set the deed itself. tlor, with a provision for the substitution of From the report of the learned referee it the Girard Trust Company in case of her appears that the plaintiff and Annie Windeath, unless the settlor should appoint an- dolph, the settlor in the trust deed, were marother successor. It conveys a part of the set- ried in 1903, and resided together continutlor's separate personal estate to the trustee ously and amicably until her death on Sepin trust to collect the income and pay it to tember 28, 1911. Elizabeth Gravell, the moththe settlor for life, and after her death to er of the wife, and the trustee named in the pay an annuity to her husband so long as he deed, was 78 years old at the date of the remains unmarried, an annuity to a niece, deed, and died September 3, 1911. She is the balance of the income to the trustee her- described by one of the witnesses as "a very self, and after her death the balance of the shrewd, able, and capable business woman.” income equally to two brothers of the set- She duly accepted the trust. The referee tlor, on their death to their issue, and a part found that the securities and other personal to charity, and if no minor issue of the property enumerated in the schedule were brothers shall survive them, then the entire part of the separate estate of Annie Winestate to charity.
dolph, and at the time of the execution of The deed gives the trustee power to change the deed and as part and parcel of the transinvestments, but not to invest in other than action were absolutely and in good faith legal securities except during the life of the transferred and delivered by her to the trussettlor without her consent in writing, and tee for the uses and purposes declared in the relieves the trustee of liability from loss on trust deed; that the deed and the transfer investments thus made. The trustee's com- and delivery of the securities under it to pensation is fixed at 3 per cent. The set- the trustee were not made by the settlor in tlor reserved the right at any time during contemplation of death, nor was it intended her life, in her discretion, to rescind, revoke, by her to take effect after her death, and or annul the instrument and the trust in that it was intended by her to take effect and whole or in part, and to change or amend become absolute on the instant of delivery. its terms and provisions, which action should He further found: be evidenced by an instrument in writing. "There was no evidence before the referee that
The bill avers that the deed was executed would justify a finding that the deed of trust and delivered, not in good faith, but with in this case was gotten up as a mere subterfuge the intent, purpose, and object of defrauding sess and control her estate and at the same time
to permit Annie Windolph in her lifetime to posthe husband, in case he should survive his to be free of the post mortem claims of her huswife, of his marital rights in the personal band. She fully intended to and actually did asproperty conveyed; that it was testamentary sign and deliver to the trustee the property in in character and did not constitute a valid and under the advice of counsel she endeavored
question for the purposes set forth in the deed gift; that, therefore, the personal property to effectuate her intention by fully complying included in the deed formed part of the es- with the requirements of law." tate of the wife at the time of her death and In conclusion the referee held that the should be turned over to her personal rep- deed of trust is valid, and that the trustee resentative; that after the execution and de- holds title to the securities and other properlivery of the deed the wife acted as the sole | ty embraced within the trust for the purpose
of the trust, and not subject to any claim of The indispensable foundation for any limthe plaintiff as the surviving husband of itation on his control is a fraudulent intent Annie Windolph. The findings of the referee to defeat his wife's statutory rights as widow, were approved by the learned court below. Young's Est., 202 Pa. 431, 51 Atl. 1036. If
The plaintiff, who is the appellant, con- the gift is absolute and accompanied by a tends: (a) That the deed of trust is void as transfer of possession with intent to divest to him because it was in fraud of his marital the donor of his ownership, although the rights; (b) that it is testamentary; and (c) | obvious effect is to defeat the wife's or chilthat the evidence established that the instru- dren's succession to the property at the donment operated as a mere nominal transfer of or's death, it is not fraudulent, and therefore the personal property embraced therein, and invalid. did not constitute a perfected gift inter vivos “In our law,” says Sharswood, J., in Prinvalid and binding upon him,
gle v. Pringle, supra, “no such gift otherwise We have examined with care the testi- wife or children. They have no legal right to
valid can be impeached as a fraud on a man's mony in the case, and are not convinced that any part of his goods, and therefore no fraud the learned referee is in error as to his find- can be predicated of any act of the husband or ings of facts. The principal testimony as parent to deprive them of the succession." to the purpose of the settlor in declaring the In Lines v. Lines, 142 Pa. 149, 21 Atl. 809, trust is that of the two attorneys whom she 24 Am. St. Rep. 487, we held that the "good" consulted in regard to the matter. They faith” required of the donor or settlor in both testify at length as to what occurred at making a valid disposition of his property the several interviews between them and during life does not refer to the purpose to their client, and, if believed, there can be affect his wife, but to the intent to divest no reasonable doubt that the deed was execut- himself of the ownership of the property. It ed by her, not in contemplation of death, is therefore apparent that the fraudulent innor intended to take effect after her death, tent which will defeat a gift inter vivos canbut to take effect immediately on its exection not be predicated of the husband's intent to and for the uses and purposes named in it. deprive the wife of her distributive share in The deed was delivered and transfer of the his estate as widow. possession of the entire trust estate was  We think there can be no doubt that, made to the trustee. She, or her agents, under the present legislation in this state, made the investments and collected the in- a wife has the same power of disposal of her come with the exception of three interest personal estate during coverture that her payments on a mortgage made by check to husband has of his personal property, and Mrs. Windolph. The referee distinctly finds that she can create a valid trust of her sepathat there was no undue or dominating in- rate personal estate without the joinder or fluence exercised by Mrs. Windolph or any consent of her husband. Of course at comone else over the trustee, who consulted her mon law this could not be done, as her estate, counsel and agents as well as her daughter on the marriage, went to her husband. Our in relation to the investments,
legislation, however, has changed her status  We do not agree with the appellant as to her separate property, and she now that the deed was a fraud upon his marital has the same right and power as an unmarrights. It is the settled law in this state, ried person to acquire, own, control, sell, or as was the common law, that during his life otherwise dispose of her property, and may a man may dispose of his personal estate, by exercise the right and power in the same voluntary gift or otherwise, as he pleases, manner and to the same extent as an unmarand it is not a fraud upon the rights of his ried person. The only exceptions are that she widow or children. Ellmaker v. Ellmaker, may not become an accommodation indors4 Watts, 89; Pringle v. Pringle, 59 Pa. 281; er, maker, guarantor, or surety for another, Dickerson's App., 115 Pa. 198, 8 Atl. 64, 2 Am. or mortgage or convey her real estate withSt. Rep. 547. This power arises from the fact out the joinder of her husband. With these that he is the absolute owner, and hence may exceptions, a married woman occupies the make a gift, declare a trust, or otherwise dis- same relation to her property as an unmarpose of his personal property at his pleasure. ried person, or, as her husband to his property. During his life his wife and children have In other words, saving the disabilities specino vested interest in his personal estate, fied in the statute, her control over, and and hence they cannot complain of any dis- power of disposal of, her separate estate are position he sees fit to make of it. Their right the same as if she were a feme sole. She to his property attaches only at his death. may therefore dispose of her personal estate
"It is scarcely necessary to add,” says Ster- during coverture as she pleases. Her husrett, J., in Dickerson's Appeal, supra, “that band has no vested interest in her personal such gifts, made in good faith as these were, property during her lifetime. If done in good cannot be impeached on the ground that they are a fraud upon the rights of the widow. Noth- faith and with the intention to divest herself ing is better settled than the power of a hus- of the ownership, she may sell her personal band to dispose of his personal property in good property, give it away, or make any other faith, by gift or otherwise, during coverture, free from all post mortem claims thereon by his disposition of it she desires during her life, widow.”
and he cannot complain, for the all-sufficient
reason that he has no interest in the proper- , dispose of the property without his consent. ty. She is the owner and has absolute con- In either case his rights were not affected by trol over it, and hence in disposing of it dur- his ignorance of the trust during her lifetime. ing life she infringes no property or other The present case is not a secret voluntary right of her husband. He does not sustain conveyance of her property by a party in the relation of creditor to his wife. If she contemplation of marriage without the condoes not die vested of it, he can never ac- sent of her intended husband, and hence the quire any interest in the property. It is man- numerous authorities cited by counsel holdifest, therefore, that having no right or inter-ing that such disposition of her property is est in or to the property as husband, there void have no application here. That was deare no marital rights of which he can be de- clared to be a fraud upon the marital rights frauded by his wife's disposal of the property of the other party and, of course, avoided the during life by gift or otherwise. To hold that transfer of the property as to him. The reaa wife cannot declare a trust or make a valid son of the rule forbidding such antenuptial gift inter vivos of her personal property transfers is well stated by Lowrie, C. J., in would, in effect, be repealing the statute Duncan's Appeal, 43 Pa. 67, 69, where it is which frees her from the common-law re- said: strictions and limitations imposed upon her "Common candor forbids that so important and declares her ownership to be that of a a change in his intended wife's circumstances, feme sole. In Saake v. Dorner, 167 Pa. 301, made without his consent, and equity sternly
and in her power over her estate, should be 31 Atl. 574, we held that the Married Per-condemns it as a fraud upon his just expectason's Property Act of June 3, 1887 (P. L. 332), tions. This principle of equity has stood the was ample to enable a married woman to test of experience too long to be open to discreate a trust of her separate estate. That | a right to suppose that he was marrying her
pute now. * * * The plaintiff had * * * act.was repealed by the act of June 8, 1893 with all her legal power over her estate, where(P. L. 344), the present law on the subject, as by this arrangement it was secretly slipped which extends and enlarges a married wo- trol, just before the marriage was consummated.
into the hands of trustees, and out of her conman's control over her separate estate, and This is not just or equitable treatment of the confers upon her the same right and power husband. A fraud no greater than this would as an unmarried person to acquire, control, avoid any other contract than that of marriage; and dispose of her property and to make any contracts that are in fraud of it."
but as this cannot be avoided, equity avoids the contract in the exercise or enjoyment of
The distinction between a voluntary dissuch right and power, requiring, however, position of property in contemplation of marthe joinder of the husband in mortgaging or riage and a gift or declaration of trust of conveying her real estate, and prohibiting her personal estate by a husband or wife during from becoming an accommodation indorser, coverture is recognized in the decisions. In maker, guarantor, or surety for another.
the recent case of Hall v. Hall, 109 Va. 117, The wife's motive for declaring the trust in 63 S. E. 420, 21 L. R. A. (N. S.) 533, where the present case was not to defraud her hus- it is held that a voluntary deed by a man band, nor did she resort to the deed for the of his personal estate cannot be set aside by purpose of defeating his marital rights. She his wife as a fraud upon her rights, the disdid desire to make a legal disposition of the tinction is adverted to, Mr. Justice Whittle part of her separate personal estate embraced
saying: in the deed, and hence she consulted her
“The fact that the precise question involved counsel with that purpose in view. She was in this case has been twice decided by this court advised that she could dispose of it by a renders unnecessary a discussion of the power proper declaration of trust, and the deed in of the husband to disappoint his widow by diquestion was made in pursuance of that ad-vesting himself of title to his personal estate in
his ( vice. It was duly executed and delivered by be confounded with the principles applicable to her to the trustee, and the property embrac- the dispositions of property made in contemplaed in it was transferred to and taken pos- tion of marriage.) ” session of by the trustee. This, as found by [3, 4] The plaintiff further contends that the learned referee, was done in good faith the instrument of July 16, 1909, is not a deed and for the purposes set forth in the convey of trust, but is testamentary in its nature. ance.
If this be true, it would not, of course, deWe do not regard as material whether the prive the husband of his interest in the propplaintiff acquired his knowledge of the decerty embraced in the deed, as the wife would laration of the trust before or after the death die possessed of the property, and hence his of his wife. She was the owner of the prop- statutory interest therein would be unqueserty, had the absolute control and power of tionable. It is contended that the instrument disposal over it, and hence she was not re- bears upon its face evidence that it was not quired to consult or notify her husband of intended to take effect in the lifetime of her intention to dispose of it. If she had the | Annie Windolph. These evidences of its tespower of disposal by deed of trust, notice to tamentary character, it is claimed, are that her husband of her intention to exercise it the settlor reserved to herself the entire inwould have served no purpose so far as he come from the trust property during her life, was concerned. It was equally unimportant that the estates of the remaining cestui que that he should have notice if she could not I trustent were not to take effect in possession
or enjoyment until after her death, and that this right is never exercised according to the there was a power of revocation reserved in terms in which it is reserved, as in the case at the instrument. We think, however, these bar, until after the death of the donor, it can
We think, however, these have no effect on the validity of the trusts, or reasons are not sufficient to avoid the deed as the right of the trustee to hold the property." a valid declaration of trust, and to show that it was intended as a disposition of property to
Nor do we think the evidence, as claimed by take effect after death. The referee found, on plaintiff, discloses that the instrument was exsufficient evidence, that the deed was deliverecuted with testamentary intent. The settlor ed to the trustee at the time of its execution, was distinctly told by her counsel prior to the together with a transfer of the possession execution of the deed that in order to make it of the property, that the settlor parted with effective as a deed of trust, she would have her title to the property at that time and to give up her property and lose all control vested it in the trustee for the purposes spec-over it. She clearly understood that to make ified in the deed, and that she at no time the deed effective she must deliver it and the intended that the deed of trust should be property to the trustee. There is nothing construed as a will, or that it was ex- subsequent to the execution and delivery of ecuted as a subterfuge to enable her to obtain the deed that indicates that this was not the control of her property, and at the same
done. The evidence which it is claimed time make it effective to defeat her husband's shows that the settlor continued to exercise marital rights in her estate. The intention her right as owner over the property was of the settlor at the delivery of the deed was carefully examined by the learned referee, to part with the legal title and the reserva and he found that it did not sustain the plaintion to herself of a life interest, and the en- tiff's contention. Our examination of the evijoyment of the estate until her death did dence has not convinced us that he was not invalidate the trust as to the beneficiaries wrong. We think that the essential requisites named in the deed. Lines v. Lines, 142 Pa. of a valid trust are disclosed in this case, and 149, 21 Atl. 809, 24 Am. St. Rep. 487; Nolan that the instrument of July 16, 1909, was not v. Nolan, 218 Pa. 135, 67 Atl. 52, 12 L. R. A. a will. (N. S.) 369; Wilson v. Anderson, 186 Pa. 531,
What has been said disposes of the plain40 Atl. 1096, 44 L. R. A. 542; Robertson v. tiff's contention that the evidence established Robertson, 147 Ala. 311, 40 South. 104, 3 that the deed operated as a mere nominal L. R. A. (N. S.) 774, 10 Ann. Cas. 1051. In transfer of the property, and did not constithe Wilson Case we said, inter alia (186 tute a valid and perfected gift inter vivos. Pa. page 539, 40 Atl. 1099, 44 L. R. A. 542):
In determining this question the learned ref"The general rule is that if the intention of eree considered, not only the deed, but all the grantor at the time he delivered the deed the other evidence bearing upon the subject, was to part with the legal title, the trust will and his conclusion was adverse to the plainbe enforced in favor of the beneficiaries, even tiff's contention. The findings of the referee though their enjoyment of the estate is post
| poned until the death of their benefactor." were approved by the court below, which
It is equally well settled that a reserved said: right of revocation is not inconsistent with “We have carefully gone over the testimony the creation of a valid trust. Dickerson's and have noted the exceptions of plaintiff to the App., 115 Pa. 198, 8 Atl. 64, 2 Am. St. Rep. ror in the referee's findings of fact.”
same. There appears to be no substantial er547; Smith's Est., 144 Pa. 428, 22 Atl. 916, 27 Am. St. Rep. 641; Stone v. Hackett, 78 Mass.
These findings are conclusive upon us in (12 Gray) 227. - In the latter case it is said: the absence of manifest error, of which we
A power of revocation is perfectly consistent are not convinced. with the creation of a valid trust.
If The decree is affirmed.