Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1889-02-03
THE p0NS ASINdPUM.
Judge NAlie tr1 Sas lrac Juio..u
in al !, ectmol asa
ADAM FUHS Is ON r0P -. oT
The Rights, Powers and Privileses
Ceslui Que Trust Defined.
WILLIAM CARSON EFT AL VS. ADAM FUHS

A suit of peculiar interest was decided
yesterday in Common Pleas No. 2-of inter
est not only to the public at large. and to
the suitors on account Of $50, 1000 involved,
but to lawyers as well, on account OF that
hair-splitting rule-the rule in Shelly's
case-being involved in all its latitude and
longitude, but to all who contemplate the
study of law, as the rule is the pons ds'no-
rum which most law students lind great
trouble in crossing. The title of the suit is
William Carson ct al VS. Adam Fuhs ct al,
and its history is as follows:
On January Is 1867, Stewart Hamilton con-
veyed to his son, James, three lots in Allegheny
City, 'in trust for the use of his mother Isabella,
during her natural life, and, at her decease.
then to her heirs in fee, share and share alike"
On October 30. 1867. James conveyed the
property back to his mother, and in 1858
Stewart Hamilton and Isabella conveyed
part of it to James, and in 1869 conveyed
another part to him and i'll 1874 they conveyed
the remainder to Adam Fuhs, and about this
time James Hamilton conveyed his two pieces
to Fuhs. Isabella Hamilton died in 1885, and
her children brought this action of ejectment
against Fuhs. The case was tried before Judge
White in December, and the jury found for
plaintiffs. subject to the opinion of the Court
on the question of law reserved, whether. under
the deeds of Hamilton and wife to James
Hamilton, in trust for Isabella, his mother.
she took a life estate and at her death the
nronor+u das,ardad 20 hor boirs. o- ,vbetber
=. SI. ~. :. a...I e.,
unuer the RUE In oneilys Case IL 'es'eo LEG
in her.
THE RESERVED QUESTION
UNA, ,-o,,.a h.fo-. +h. corr+ l.; hos;, .rd nm
sao ., uou ooto,o sn1 ~ 49,, - ~
oasulaay @ morning Suase VIII Mnse - nleu s sns
the finding of the Jury and ordered judgment
to he entered for the defendant non obstante
vorad;oto
'Irouie'o -.
Inc argument OF the case occupied aWnole
day. The jury had rendered its verdict under
instructions from the Court -.
His Honor states t,,at re ,s,i..,t;ui,I of law
rosarvad is. w. .;,is Ala Is,he,Ia H.ui,ton
80 h. ou 80, 10 naI s.' Is ,;fa as.ata
axe Dy tne trust deed3 IL merely nIe estate,
plaintiffs are entitled to recover; II fee, either
III J st,+rta of Noes thew arc not Ravieu,ino
~ nno;,.s h, ~b;,b E,,bs .rna 49,, ,os
sasslpnn tho I55oa ss.vs. tbint No nnestion
of estonnai can Re 1a;sed aoainsr niaintiffs Snr.
inc tbo iifa IF tho;r rnothsr Tbs' rnIa in Sbai.
ivis case is Sr,,iv asta bi;shad 40 !, Law of this
State tbongh ir "a JificnIt to reconcile sone of
the dsc;s;o5s The rnie is in brief. When bv
daed ~ sviII ~ ost,ta in land ia oiyan 70 ono
HI a. an s dae,h tha rssaindar ~ ms
heirs in fee the estate of the life tenant is en-
iaraed tn fee the two estates meroed into
one and the first taker takes the whole. The
true test in tie application OF the rule is, dld
shonId t,Is ne heirs nf the life tenants, Tbs
thing sought is not the persons who are directed
to take the remainder, but the character in
winch the donor intended they should take In
rha wo,d pha;rs Ia ,,r,;,.a o- r,od,sod b,
other irreauiyocai Expressions i'm the deed or
will and other words than that of "heirs' may
brlng the case within the rule ANY form OF
w 90 =, 4hse ~ t enS or as ths
general or iineal heirs of the first taker will
nv imnIicat;no Potts, annaaI McKea va Nc
Kinley Dods5n VS. Rail. etc
If the deed had been directly Tn Isabella
Hamilton sidurinc her natural life and at her
death. then to her heirs in fee share and share
alike - She would have taken a fee. Phizsick's
appeal. Ogdeu's appeal
But the ruIe in ShelIy,s case does not apply
unless both estates-for life and remainder-
are of the same 1nality both LEGAL and ennita-
BILE Here the LEGAL estate under the trust is in
the trustee, and Isabella Hamilton had only an
equitable life estate. So had the remainder
men, but under the statute of uses it became
an executive trust as to them, and they took
the legal estate in remainder if the first had
taken only life estate Was it dry or un-
executed trust; also as to her so that She took
the legal estate under the statute Of uses
A dry trust, His Honor explains, is one where
no duties are to be performed by the trustee;
an active one where important duties are con-
tded to the trustee.
TRUSTS NOT STRICTLY ACTIVE,
but passive. will be saved where the protection
of married woman is involved. or that of a
snondthr;ft ohiId. 70 srnno-t cnrtiroont re-
openu'nS oniiu, " ouppo,s 0osns
malnders' OF TO serve some otner purpose use
ful and lawful. In this case 1t Is passive
trust.
After detailing the object of an active trust,
he states that it ceases when it has no longer
purpose to serve and cites many decisions. The
case was not strictly passive trust, for there
were csrIan ht =; aaes @ 70 5s Ny Inc
Trusts for the lob Object of protecting the prop-
erty of married women from their husbands
debts, where the husband dies, tall
lS4S, His Honor says: The trust deed in this
oct IT, was snieI1 for The bene5t ~ Ms Tsas