guardian to file an account, and on March 24, 1877, the Court dismissed the petition. (See Stewart's Estate, 3 WEEKLY NOTES, 476.) In accordance with the suggestions made in the opinion of the Court, petition was made for an auditor to state the account of Andrew J. Griffith, administrator of the deceased guardian, under the Act of March 29, 1832. The auditor U.S. Circuit CourtEquity. May 2, 1878. further found that the said Morrell was insolvent Hidell et al. v. Girard Life Ins., Annuity, when he died, and was indebted to the estate in about $1000. The auditor disallowed the ad and Trust Co. ministrator's claim for commissions, and sur- Deed of settlement Trust-Power of revocacharged him with the costs of the audit. Exceptions to all these findings of the auditor were filed by the accountant, as also an exception to the amount of the auditor's fee. W. W. Wiltbank, for the exceptions. Nov. 2, 1878. THE COURT. It is clearly the duty of the executor or administrator of a deceased guardian or other fiduciary, to promptly file the account of his decedent when legally requested by the parties interested. And the penalty which attaches to the neglect and refusal of the decedent will also fall upon the dereliction of duty of his representative. In the present case the administrator was in possession of all the information and material which would enable him to prepare and file an account, and, in addition, was instructed by the Court that such was his duty. (Stewart's Estate, 3 WEEKLY NOTES, 476.) Nevertheless, he needlessly subjected the petitioners to delay and expense, and compelled them to proceed under the Act of March 29, 1832, and an account was stated by an auditor. In view of the evidence the auditor was correct in reporting that the administrator should be decreed personally to pay the costs of the reference, and, in addition, that the deceased guardian should be deprived of all commissions, as the moneys of his ward had been converted to his own use. But the sixth exception must be sustained, for the reason that the auditor has not complied with the rule of Court requiring him to submit the amount of his compensation to the counsel of the party liable to pay the costs of the proceeding, who shall designate the sum which in his judgment ought to be paid for the services performed, before any amount shall be named or charge made by the auditor. If the amount of compensation suggested be not satisfactory to the auditor, he shall make report thereof to the Court. The remaining exceptions are dismissed, and the report is recommitted to the auditor for correction in accordance herewith. Opinion by HANNA, P. J. tion-Execution of. A., a single woman, assigned her property in trust for herself for life, with remainders, reserving a power to revoke or declare new trusts. Subsequently, immediately prior to her marriage, she "renewed the trust for five years," and immediately afterwards formally revoked it: Held, that the renewal for five years was, as such, ineffective, as the trust required no renewal to maintain it during the grantor's lifetime; but that it operated as a revocation at the end of that period. Held further, that as the power had been thereby completely exercised, the subsequent revocation was void, as being unauthorized, and had no effect. Quare, whether the instrument executing a power of revocation can contain a valid power to revoke the exe cution itself. Hearing on bill and answer. The bill, filed by W. H. Hidell and Dora R. Hidell his wife, in right of said Dora, against the Girard Life Insurance, Annuity, and Trust Company, alleged that Mrs. Hidell, prior to her marriage, on June 24, 1872, conveyed and assigned her property to the defendant in trust, to collect and pay over the rents, with other active duties, during her lifetime, with remainder to the uses to be declared in her will, and the usual remainders over; reserving in the said deed of trust a power "at any time after the first day of July, 1875, by any instrument in writing, executed in the presence of two witnesses, to modify, change and alter said trusts, and to declare new and other trusts upon which said estate shall then be held, or, at her pleasure, entirely to revoke the same." On October 27th, 1876, prior to her marriage, she executed and delivered to the defendant the following instrument : The bill prayed for a declaration that the original | estate shall then be held, or, at her pleasure, deed of trust was revoked by the last-mentioned entirely revoke the same," etc. instrument, and that the defendant be ordered to reassign the property. The answer admitted the facts alleged, and set forth that on October 31, 1876, Mrs. Hidell, then a single woman, was married to the complainant, but averred that the legal effect of the instrument of the 27th of October, 1876, was to deprive the grantor of the power to revoke for five years from its date. A. Sydney Biddle (C. D. Freeman with him) for the complainants, argued that the intention of the grantor could only be ascertained by the terms of the instrument itself. The language was, "I hereby renew the trust created by the deed of June 24, 1872," etc. The result was the same as if that deed had been re-written, with a proper change of dates. This was doubtless an execution of the power of limitation, inasmuch as it cut down a life-estate to a term of five years; but the power of revocation was reserved. by the instrument of October 27, 1876, as it had been by that of June 24, 1872. To exclude the power of revocation from the former instrument, would vary it from what Mrs. Hidell had herself made it, for then it would no longer be a renewal of the same trust, but the creation of a different one, viz., one without the power of revocation. Ridgway, contra. The complainant, Mrs. Hidell, executed the instrument of October 27, 1876, being then a single woman, four days prior to her marriage with the other complainant. This was in contemplation of marriage, and the object was to restrain her husband from controlling her property for five years. She meant to say, "I hereby renew the irrevocability of the trust... for five years," the words in italics being accidentally omitted. The instrument would otherwise be insensible, for it would be absurd to suppose that she intended to cut down the life estate to one for five years and still reserve the power of revocation. [CADWALADER, J. Do not the cases show that a single exercise of a power exhausts it, and that no execution of a power to revoke can itself reserve a second power of revocation?] The writing of October 27, 1876, was executed as required by the trust deed, and purports to "renew" the trusts thereby created for five years from that date. For this specific purpose it was plainly ineffective, because, by force of the deed creating it, the trust was of indefinite duration, and needed no renewal to continue it. But it is operative as a limitation of the duration of the trust to five years, and so came legitimately within the scope of the reserved power. It was an exercise of this power with that specific effect, and as that was, therefore, its apparent purpose, such must be taken to have been its real intent. Can Mrs. Hidell now revoke this trust, and demand a reconveyance of the trust estate? To this end she has invoked the intervention of this Court. It has been already said, that the paper of Oct. 27, 1876, is a proper exercise of the power reserved in the original deed. It is a modification of the trust, inasmuch as it changes the indefinite period of its continuance to five years. But it is more than this. It is an exercise of the power of revocation. By the clearest implication it establishes the trust for five years, limits its continuance to that period, and reserves no power to change or terminate it sooner. I think there can be no doubt that, by force of that paper, the trust will terminate at the expiration of that time. Hence it is a revocation of the trust to take effect at the end of five years, with a declaration that it shall continue during that period. And the designation of a day certain in the future, for the termination of the trust, is just as appropriate an exercise of the reserved power, as would be a revocation to become immediately operative, because an unlimited right to revoke necessarily includes a right to fix the time at which the act of revocation shall take effect. There is high authority for the argument that a single exercise of a power of appointment or revocation exhausts the power. But where a power of revocation is once fully exercised, what is there left in the possessor of it, upon which a subsequent and entirely inconsistent exercise of it can rest? Such is the virtual effect of Mrs. Hidell's execution of the writing of Oct. 27, 1876, establishing the trust for five years from that date, and terminating it on the 27th of October, 1881, whereby it is revoked as of the latter date, without leaving any residue of the original power in her of intermediate revocation. The bill must, therefore, be dismissed with costs. Feb. 7, 1879. THE COURT. The deed of June 24, 1872, invested the defendant with the legal ownership of the property conveyed by it, during the life of Mrs. Hidell, the grantor, in trust that the defendant would receive and pay over to her the income of the trust fund, subject to her right, however, "at any time after the 1st day of July, 1875, by any instrument in writing, executed in the presence of two witnesses, to modify, change and alter said trusts, and to declare new and other trusts upon which said | J., Opinion by MCKENNAN, CIR. J. CADWALADER, concurred. WEEKLY NOTES OF CASES. benefit of her four sons for life, with a similar limitation of the remainders in each to such persons as would, by the intestate laws of Pennsylvania, be entitled to the same, if the sons had VOL. VI.] THURSDAY, MARCH 6, 1879. [No. 30. respectively died intestate, seised in fee. By a It seems, that the ninth section of the intestate Act of 1833 (providing that no person shall inherit who is not of the blood of the ancestor from whom the estate descended) is repealed by implication, as to an adopted child, by the Adoption Act of May 4, 1855. Testatrix devised real estate to trustees to pay the income to her son for life, and at his death to "convey said real estate to such person or persons, and for such estate or estates, and in such proportions, as would, by the intestate laws of this Commonwealth, be entitled to the same if he had died intestate, seised thereof in fee." codicil the testatrix restricted the amount of income to be paid to her son Samuel to such sums as the trustees might, in their own discretion and judgment, think proper and conducive to his welfare, and not to his injury. The testatrix died in 1862. On the 8th of May, 1875, Samuel B. Johnson. applied to the Court of Common Pleas for perplainant), under the provisions of the Act of mission to adopt Ann Booth Francis (the comMay 4, 1855 (Purd. Dig. 61), which petition, having been assented to by the minor and her mother, was duly granted, and it was decreed, in accordance with the Act, that she should have all the rights of a child and heir of the said Samuel B. Johnson." Ann Booth Francis was a stepdaughter of Samuel B. Johnson, being a daughter of his wife by James Francis, her former husband. Samuel B. Johnson died December 18, 1877, leaving a widow and no child, except his adopted daughter, the complainant. The bill prayed for a decree that under Mrs. Johnson's will, the estate which was vested in the trustees during the life of Samuel B. Johnson, and which " upon and immediately after his death was to be assigned to such person or After the death of the testatrix, the son adopted a child persons, for such estate or estates, and in such under the provisions of the Act of May 4, 1855, and sub-proportions as would, by the intestate laws of sequently died, without issue, leaving the adopted child this Commonwealth, be entitled to the same if surviving him: Held (reversing the decree of the Court below), that the he had died intestate seised thereof in fee," adopted child was entitled to the estate. Bill in equity, filed by Ann B. F. Johnson, by her guardian, against the trustees and cestuis que trustent under the will of Jane Johnson, deceased. The bill set forth, inter alia, that by her will, dated March 13, 1857, Jane Johnson devised to testamentary trustees certain real estate, in trust, to collect the rents and profits thereof, and to pay them over to her son, Samuel B. Johnson, for and during the term of his natural life, the same not to be subject to any debts or liabilities contracted by him; and immediately after his death to grant and convey the said real estate to such person or persons, for such estate, and in such proportions as would, by the intestate laws of this Commonwealth, be entitled to the same if he, the said Samuel, had died intestate, sesied thereof in fee. Other parts of her estate were similarly disposed of, in trust for three o'her Her residuary estate was devised and bequeathed to trustees upon like trusts, for the sons. should be conveyed and assigned by said trustees in fee to the complainant. And that any income on hand, and any securities held under the residuary clause, should be transferred to her guardian. The answer denied that under the Adoption Act, or the decree of the Court thereunder, the complainant was entitled to any interest in the estate of the said Mrs. Johnson, or that the said Samuel B. Johnson died seised of any inheritable estate under the said will; and averred that the trust created by the said will for the first takers was designed by the testatrix to extend the final enjoyment of her estate to her grandchildren. After hearing on bill and answer, the Court dismissed the bill with costs, THAYER, P. J., delivering the following opinion : "The question to be decided upon the pleadings is whether the fee in that portion of the estate of the testatrix which was devised and bequeathed in trust for Samuel B. Johnson for life, has vested in the complainant, his adopted daughter, or has passed under the will to his surviving brothers and the children of his deceased brothers. estate. subjected him absolutely, even as to the receipt of income, to the discretion and judgment of her trustees? It is impossible for us to believe this, for it is contrary to the whole spirit and tenor of her will. "It is clear that whoever is to take the re- | it, to her son's discretion, when she expressly mainder is to take as a purchaser under the will deprived him of all discretion and power even of Jane Johnson, and not by descent as the heir over that which he was to enjoy himself, and of her son. The son may be said to have been a purchaser as to his life interest, for, although at common law a devisee, who takes by the will precisely the estate that would have been cast upon him by descent, is in by descent and not by purchase, yet the case is different where there is a difference in quantity between the estate which the devisee would take as heir and that which he takes under the devise. (Kinney v. Glasgow, 3 Smith, 143; Reading v. Royston, 1 Salk. 242.) But as purchaser he only took an equitable life He had nothing in it which could descend to his heirs. The fee remained in the trustees for the remaindermen, to whom it was given by the will, and these remaindermen are described as such person or persons as would, by the intestate laws of this Commonwealth, be entitled to the same if the said Samuel had died intestate, seised thereof in fee.' What persons were intended by Mrs. Johnson by these words? for it is the intention of the testatrix, and her intention alone, which is to prevail. We think those persons were intended who would have been entitled under the intestate Act of 1833. That Act is entitled 'An Act relating to the descent and distribution of the estates of intestates.' This is what is usually understood by the intestate law of Pennsylvania. It is commonly called the intestate law, sometimes the statute of distributions. It is in itself a complete code of laws upon the subject to which it relates. Its provisions are in accord with the general sentiment of the people of this State upon that subject, and are founded in nature and reason. It gives the property of an intestate to his kindred, commencing with the nearest in degree, and scrupulously confines the descent of real estate to those who are of the blood of the ancestor from whom it descended, or by whom it was devised. By this law any estate derived from the mother would, upon the death of any one of her sons, go to those of her own blood, to her surviving sons, and to her grandchildren and granddaughters, the children of her deceased sons. Can it be believed that she intended that any part of it should go to strangers to her blood, or, least of all, that it should go to an appointee of a son whom she had tied up by the most rigid trusts, whom she had deprived of the least control over both the corpus and income during his life, and of all dis· position of it after his death? Can she be supposed to have intended that her son should designate the heir who should succeed to her estate, when she deprived him not only of all power of appointment, but of any control whatever? Could she have intended to commit the future disposition of the estate, or of any part of "But it is said, that however improbable this may be deemed, the testatrix must have intended that which she has said, that she has by express words limited the remainder to such person as would be entitled to the same by the intestate laws if Samuel B. Johnson had died intestate, seized thereof in fee. That if Samuel B. Johnson had died intestate and seised thereof in fee, the complainant, his adopted daughter, would, under the Adoption Act of May 4, 1855, have been entitled to the estate. But the argument leaps to a conclusion which is totally unwarranted by law. If Samuel B. Johnson had died intestate and seised in fee, it by no means follows that the complainant would have inherited this estate. It would have been necessary in that event to have inquired from whom the estate descended, or by whom it had been given or devised to him, for the ninth section of the Act of April 8, 1833, would have excluded from the inheritance all persons who were not of the blood of the perquisitor. There is not the slightest pretence to say that the Act of 4th of May, 1855, relative to adoption, has repealed or modified in the least degree this fundamental rule of the law of descents as fixed by the intestate law of this State. It would require the plainest and most express language, or the most absolute and necessary implication, to repeal a rule of inheritance so deeply imbedded in our law as this. There is nothing in the Act of 1855 which lends countenance to the supposition that it was the intention of the legislature to disturb in the least this long established canon of descent. The Act declares that such adopted child shall have all the rights of a child and heir of the adopted parent. It gives to the adopted child the right to inherit from the adopting parent, but always subject to the rules of inheritance laid down by the intestate law. It does not repeal the ninth section of the Act of April 8, 1833, which demands the indispensable qualification of blood to enable her to inherit an estate coming to the adopting parent by descent or devise. As was said by Mr. Justice STRONG, in Schafer v. Eneu (4 Sm. 306), the statute of 1855 does not attempt the impossibility of making the adopted person the child of the adopted parent. It gives to such person the rights of a child without being a child.' That is, the right to inherit from the adopting parent an estate of which he is the true perquisitor. But there is no ground to allege that an adopted child, not of the blood of the ancestor from | fee, she cannot be supposed to have intended whom the estate is derived, could inherit such an that the estate should be taken out of the ordinary estate from his adopting parent. The argument, rules of descent prescribed by the intestate laws, therefore, that the complainant is entitled to this and she must be presumed to have known that estate because if her adopted father, Samuel B. such an estate derived from her must be confined Johnson, had died intestate, seised in fee, she in its descent to heirs of her own blood. That would have taken from him, is founded in an this was her true intention, and that she did not erroneous conclusion. She could not have in- contemplate the possibility of its being diverted herited an estate derived to him by descent or from her own kindred to a stranger by any act devise from his ancestor, unless she was herself of the son, we think is plainly apparent from the of the blood of that ancestor. When Mrs. John- whole will. son, therefore, by her will gives the remainder to such person or persons as would by the intestate laws be entitled to the same if her son Samuel had died intestate seised thereof in fee, her words must be construed with reference to the facts of the case, and the words had died intestate seised thereof in fee' must be taken to mean the same as if she had said died intestate seized thereof in fee of an estate derived from herself. "We have considered the question exclusively in respect to the real estate devised by the testatrix. We are of opinion that the same result would follow as to any personalty which might be embraced in the residuary estate, for it is obvious she intended the same persons to take both. But it is unnecessary to decide this, because the bill, while suggesting the possibility of some personal estate being comprehended in the residuary estate, does not explicitly charge that any such personal estate came to the hands of the Bill dismissed with costs. The complainant thereupon took this appeal, assigning for error the dismissal of the bill; the rulings of the Court that the testatrix intended only such persons to take as would have been entitled under the Act of April 8, 1833; and that the descent of property, under the Adoption Act of 1855, is controlled by the provisions of the ninth section of the Act of 1833. W. H. Drayton, for the appellant. "That the Act of 1855 confers only a limited right upon an adopted child, and does not sub-trustees.' stitute him in the place of a real child under the intestate laws, is proved by the decision in Commonwealth v. Nancrede (8 Casey, 389), where it was held that a child by adoption is subject to the payment of the collateral inheritance tax, and Tharp v. Commonwealth (8 Smith, 500) is to the same effect. There is an analogy between the Act of May 4, 1855, relative to adopted children, and the Act of 27th April, 1855 (Purd. Dig. 810), which enables illegitimate children to inherit from their mother and vice versa. That Act declares that they shall have capacity to take and inherit from each other personal estate as next of kin, and real estate as heirs in fee simple. In Grubb's Appeal (8 Smith, 55), it was held that the next of kin of the mother could not under this Act inherit as heirs of the child, in other words, the Act was held to have no operation in altering the intestate laws beyond the letter of the statute. A like rule may with priety be applied to the Act of May 4, 1855. The application of that rule, while it gives the adopted child the right to inherit from the adopting parent, would exclude the possibility of such child inheriting from an ancestor of the adopting parent, and preserve intact the rule always so zealously maintained in this State, that one who claims an estate descended to or devised to an intestate must show himself heir to him by whom it was devised, or from whom it descended as perquisitor. pro "When, therefore, Mrs. Johnson directed that the estate, the income of which was to be appropriated during his life to the maintenance of her son, should after his death go to such persons as would by the intestate laws be entitled to the same if he had died intestate, seised thereof in The language used by the testator, viz.: Upon the death of my son Samuel, to such person or persons, for such estate or estates, and in such proportions as would by the intestate laws of this Commonwealth be entitled to the same if he had died intestate, seised thereof in fee," has been judicially construed to mean his heirs. Dodson v. Ball, 10 Sm. 492, 500. Yarnall's Estate, 20 Id. 335. Gaul's Estate, 30 Id. 348. The Act of May 4, 1855, gives the adopted child, by virtue of a decree of Court, "all the rights of a child and heir of the adopting parent." Act of May 4, 1855, Purd. Dig. 61, pl. 1. The question is not who would take by virtue of any relation to the testatrix, but who is entitled if Samuel Johnson died intestate, seised of the property in fee. Certainly the words of the Adoption Act, giving the complainant "all the rights of a child and heir," bring her within the provisions of the Intestate Act of April 8, 1833 (Purd. Dig. 806). The Act of May 4, 1855, repeals, qua an adopted child, the ninth section of the Act of April 8, 1833 (Purd. Dig. 808, pl. 27), which provides that: |
