#### Goehring and Others’ Appeal.

1. A trust by deed was to Dennison, his heirs and assigns, of real estate for the use of his three children, to lease the premises, etc., “ to have and to hold . . . during the existence of this world,” paying to the grantor §5 rent during her life, and after her death to the heirs, etc., of her husband, deceased, their heirs and assigns, and subject to this rent, in trust that Dennison, his heirs and assigns, should lease the premises for such term as he or they might deem expedient, and apply the rents equally between the three children ; if either of them should die without issue, the whole of the rents to go to the survivors; if either should leave issue such issue to take the parent’s share; after the deatli of all the children, the premises to be held in trust for their right heirs, etc., their heirs and assigns ; if any die without issue, to hold for the survivors, their heirs and assigns, etc., with the proviso that there should be no estate vested in the three children which might be charged with their debts, but the rents should bo applied to them free from any incumbrances created by the three children or the lawful issue of either of them at any time during their life or the life of a survivor. *Held,*that the trast did not create a perpetuity.

2. The primary trust was to lease the premises and apply the rents for the *284life of the three children then in being, the issue of any deceased taking only during the life of the survivor. *Held,*that the trust was active.

3. The secondary provisions were to direct the course of the. estate in remainder after the primary trust.

4. This was not the execution of a mere power, but the transfer of the legal estate and trust to be exercised for the benefit of the cestui que trust during the trust in its active state.

5. The trustee leased for five years, with privilege of renewal for five years more at the option of the lessees. The lease was not *ipso facto*void by reason of the option.

0. If the power was abused there might be a remedy in damages against the trustee ; or if by collusion, against trustee and lessors.

7. Barnett’s Appeal, 10 Wright, 392; Earp’s Appeal, 25 P. E. Smith, 119, followed.

November —, 1875.

Before Agnew, C. J., Sbarswood, Williams, Merour, Gordon, Paxson, and Woodward, JJ.

Appeal from the Court of Common Pleas of *Allegheny*County, No. 1. In equity. Of October and November Term, 1875, No. 218.

'This was a bill, filed August 23d, 1870, by Joseph Hunter and Mary Ann, his wife, Charles L. Goehring, Melissa Gcehring, Louis Marchand and Rebecca, his wife, and Agnes Gcehring, against William Roseburg, trustee, and Joseph Morgenstern and others, lessees under the trustee of property held in trust for the plaintiffs. The plaintiffs, other than the husbands of Mrs. Hunter and Mi’s. Marchand, were children and descendants of Samuel Dennison.

It is not necessary to set out the bill at length ; the questions decided can be understood by a statement of the facts. The prayers were that the trustee should execute the trust by conveying the property to the complainants, the cestui que trust,-and that the leases made by the trustee to the other defendants should be cancelled.

On the 1st of January, 1824, the persons interested under the will of Jeremiah Sturgeon, deceased, conveyed the property in question to “ Samuel Dennison, his heirs and assigns, forever, in trust for the use of Jeremiah S. Dennison, Mary Ann Dennison, and Agnes Dennison, their heirs and assigns, forever ... to have and to hold the said described lot, etc., to the said Samuel Dennison, his heirs and assigns, in trust as aforesaid, from the day of the date hereof for and during the existence of this world, yielding and paying therefrom, etc., yearly, etc., to the said Mary Sturgeon, widow, etc., during the term of her natural life, and after her death to the heirs and legal representatives, their heirs and assigns, the yearly rent, etc., of $5, *‘*with power of distress/ To have and to hold the said (premises) to the said Samuel Dennison, his heirs and assigns, forever, upon this special *285trust, etc., that the said Samuel Dennison, his heirs and assigns, will from time to time demise and lease the said premises for such term or terms, to such person or persons, and for such rent or rents as to him or them may seem expedient, and apply the said rents equally, share and share alike, to the maintenance and education of Jeremiah S. Dennison, Mary Ann Dennison, and Agnes Dennison, children of the said Samuel Dennison, provided, etc., that if either of. the said Jeremiah S. Dennison, Mary Ann Dennison, and Agnes Dennison, or any of them shall die without lawful issue, then, etc., the whole of the proceeds of said rents shall be applied to the survivor or survivors, but if either, etc., shall die leaving lawful issue, that then such tissue shall enjoy such share of said rents as would have been enjoyed by the parent, etc. And upon this further trust, etc., that after the deaths of the said Jeremiah S. Dennison, Mary Ann Dennison, and Agnes Dennison, the said Samuel Dennison,

his heirs and asigns, will hold the said premises in trust for the use of the right heirs and legal representatives of the said Jeremiah, etc., their heirs and assigns, forever; provided, etc., that if either the said Jeremiah, etc., or any of them shall die without leaving lawful issue, then, etc., Samuel Dennison, his heirs and assigns, shall hold the premises in trust for the use of the survivor or survivors of thorn, their heirs and assigns, forever, etc., and if either or any of them shall die leaving lawful issue, then the said Samuel Dennison, his heirs and assigns, will hold the premises for the use of such lawful issue, and the survivor of said Jeremiah, etc., their heirs and assigns,” no estate to be vested in Jeremiah, etc., that might be charged with debts contracted or to be contracted, the rents, etc., to be applied to the purposes before mentionéd. The other parties to the conveyance released and quitclaimed unto Samuel Dennison, his heirs and assigns, all their estate in the premises for the uses aforesaid. On the 27th of May, 1848, Samuel Dennison, with his own consent, was discharged from the trust, and Samuel Roseburg appointed in his place. On the 7th day of April, 1855, Samuel Roseburg having died, the Court appointed William Roseburg, trustee, in his place. Samuel Dennison, the_ original trustee, died September 13th, 1856, leaving Robert B. Dennison, his eldest son. On the 8th of December, 1864, William Roseburg leased the premises to Joseph Morgenstern and others for five years from the 1st of April, 1865, for the rent of $3500, or for ten years from that time if the lessees should elect to do so for the same rent. The lessees elected to remain during the ten years, and afterwards sublet the premises for $8500. On the 11th *286day of April, 1870, Robert B. Dennison, assuming that the trust had descended upon him as eldest son and heir at common law of Samuel Dennison, and that the trust was passive, conveyed 'the legal title to the survivors of the three children, and the representatives of those deceased. The defendants having filed their answer, the case was referred to L. P. Stone, Esq., as Examiner and Master.

lie reported that the legal propositions presented before him were:

By the plaintiffs: That the trust was an executed one, and that the trustee had not power to make such lease, even if the trust was not an executed one.

That Roseburg’s appointment as trustee was only during the life of Samuel Dennison, who died before the date of the last lease ; that upon his death, the trust being at common law, vested in his oldest son, Rpbert B. Dennison, who executed the deed of April 11th, 1870, before stated.

For the defendants: That the trust was an active-subsisting one; that Roseburg had the same powers as the original trustee ; that the trust was accompanied with such discretionary powers as did not pass to the heir of the original trustee.

He decided that the lease was entered into in good faith on the part of the trustee and the lessees; he declined to decide the legal propositions.

After exceptions to his report it was confirmed by the Court of Common Pleas, and the bill was dismissed with costs.

The plaintiffs appealed to the Supreme Court and assigned the decree for error.

*G. W.*Guthrie, *J. K*Kerr, *JR. S. Woods*and *PI. JD.*Foster, for appellants. •

In a trust for a temporary purpose the legal estate is executed in the cestui que trust when the purpose ceases: *Dodson v.*Ball, 10 P. F.Smith, 492 ; Wells v. McCall, 14 Id., 207 ; Yarnall’s Appeal, 20 Id., 335 ; Ogden’s Appeal, Id., 501; Barnett’s Appeal, 10 Wright, 392. The words of the deed made the'first takers tenants for life with remainder in fee to their heirs ; as soon as issue should be born the remainder vested in these: Kay *v.*Scates, 1 Wright, 31; Rife v. Geyer, 9 P. F. Smith, 393 ; Fearne *on*Remainders, 508 ; 2 Washburn on Real Prop., 504, pl. 12, 660, pl. 7; Williams on Real Prop., 247. The limitations do not create cross-remainder: Masden’s Estate, 4 Wharton, 428 ; Seminary v. Wall, 8 Wright, 353; Lovett *v.*Breloid, 3 Barb. Ch. R., 137. A donor cannot grant a fee-simple with all its rights and *287privileges except power of alienation: Kepple’s Appeal, 3 P. F. Smith, 211;. Keyser’s Appeal, 7 Id., 236.

If an absolute power be given to a trustee to lease he cannot restrain himself from exercising his best judgment for the benefit of his cestui que trust. The restraint imposed by himself by his giving an option for the renewal was void: Doe *v.*Bettison, 12 East, 305 ; Harnatt *v.*Fielding, 2 Sch. & Lefroy, 549; 2 Sugden on Powers, 122, pl. 21, 397, pl. 18. A trustee acting under a power cannot make a lease in reversion: 2 Sugden on Powers, 350, pl. 16, *et seq.;*their leases must be reasonable: Perry on Trusts, section 484, 508, 530 ; Taylor on Landl. and Ten., section 130-132 ; Attorney-General *v.*Owen, 10 Ves., Jr., 555 ; same *v..*Backhouse, 17 Id., 283 ; same *v.*Brooke, 18 Id., 320; same *v.*Griffith, 13 Id., 575.

*M. W. Acheson*and *G. Shiras, Jr.,*for appellees.

The purposes of the trust required the legal estate to be vested in Samuel Dennison, it was not executed in. the children : Dennison *v.*Goehring, 7 Barr, 175-180. The trust was active: Barnett’s Appeal, 10 Wright, 392; Earp’s Appeal, 25 P. F, Smith, 119. Where there was a trust to receive the i’ents. etc., during the lives of testator’s children, a lease for twenty-one years, with covenant to renew, was upheld : Greason *v.*Keteltas, 17 N. York Rep., 491. Equity will not control a trustee acting *bona fide*in the exercise of his discretion: Hill on Trustees, 488; Perry ou Trusts, 538.

Judgment was entered in the Supreme Court, November 24th, 1875.

Per Curiam :

The trust in this case to lease the premises

and apply the rents was for the lives of three persons in being, and of the survivors and survivor; the issue of any one deceased taking only during the life of the last survivor. The trust, therefore, did not contravene the rule against perpetuities. This was the primary .trust, and was an active one, and therefore fell within the authority of Barnett's Appeal, 10 Wright, 392; Earp’s Appeal, 25 P. F. Smith, 119, and kindred cases. The subsequent and secondary provisions in the deed were to direct the course of the estate in remainder after the expiration of the primary trust.

This was not the case of the execution of a mere power, but was a transfer of the legal estate itself, the trust to be exercised for the benefit of the cestui que trust during the trust in its active state. The lease was therefore not *ipso facto*void because subject to renewal at the option of the lessees. If the power was abused it might have given. *288rise to a remedy against the trustee in damages, or if by collusion against both trustee and lessees.

Recree affirmed, with costs, and appeal dismissed.