FOURTH SECTION OF PENNSYLVANIA ACT OF ASSEMBLY, OF APRIL 22, 1856, RELATIVE TO CREATION OF TRUSTS, is prospective, and has no application to a case which arose before the passage of the act.

ACTION of quare clausum fregit brought by Ritchey against Lingenfelter and others. The head-note and opinion state the

case.

Tate, Kimmel, and Lingenfelter, and Russell, for the plaintiffs in error.

G. H. Spang and W. M. Hall, for the defendant in error.

By Court, AGNEW, J. The legal title to the land in controversy was vested in Solomon Hollar by a patent dated the 16th of May, 1837, for 4484 acres of land. Hollar's title to 224 acres, the part in dispute, became regularly vested in Ritchey, the plaintiff below. The defendants claimed title under one Abraham Sparks. They alleged, and as the court took the facts from the jury we may suppose proved by parol, a trust in Solomon Hollar for Abraham Sparks for one half (224 acres) of the land held by him under the patent. The facts proved were, that Hollar and Sparks, each owning 224 acres of the tract which had originally been one of 448 acres, surveyed 1794, under a warrant to Valentine Hollar, agreed together to get it patented in the name of Solomon Hollar, to save patenting fees and probably the expense of two locations under the graduation law. For this purpose Sparks conveyed to Hollar by a deed of April 25, 1837, reciting a pecuniary consideration of $356. Corroborative circumstances as to Sparks taking off stone and burning lime on the place with the knowledge of Hollar, and the partition of the estate of Sparks after his death among his heirs, including this land, were given in evidence. The plaintiff rebutted by proof of one witness that Sparks said he had bought the land for Hollar at his own request, and the sum in Sparks's deed to Hollar was precisely the same as that in the deed made to Sparks. On this state of the case, the court below directed a verdict for the plaintiff, on the ground that the parol evidence was incompetent to vary the terms of the deed from Sparks to Hollar, which were absolute on its face. The case, it was said, was ruled by the court below on the authority of Porter v. Mayfield, 21 Pa. St. 264. The real ground of decision in that case was the relation of landlord and tenant existing between the grantee and grantor after the execution of the deed, though the

judge did say the evidence was incompetent to contradict the deed as between the grantor and grantee. But this was said in a case where there was no evidence, according to the report of it, to show that the trust arose from the breach of any confidence reposed for a purpose which would make it a fraud to use the deed against the grantor; and indeed, the expression was no more than a dictum. We cannot therefore consider the point before us as decided by Porter v. Mayfield, supra. In this case the evidence was of what took place between the parties before and at the time of the execution of the deed, and proved that the deed was made for the sole purpose of having a single patent taken out in Hollar's name. It was for their joint and mutual benefit, no money passing for the purchase; a confidence was reposed by Sparks in Hollar for a special purpose, and on this ground he was induced to part with his title. The breach of this confidence was clearly bad faith, and created a resulting trust. The parties were brothers-in-law, and if Sparks had not believed Hollar intended to carry out their mutual arrangement in good faith when he procured the title from the commonwealth by the patent, he certainly would not have executed the deed. To say that the procuring of a title thus through a confidence reposed, the violation of which is clearly fraudulent, cannot be shown by proof of what occurred in the very transaction itself, and at the time of its consummation between the parties, is to open a door to fraud and close it to honest trust. The statute of frauds is a salutary act, but to suffer it to become instrumental in the commission of such a palpable breach of faith would make it a source of the grossest injustice, and would enable a party to secure the fruit of every scheme into which he can procure a friend to enter with him on terms of the greatest assurance. The authorities I think forbid this to be done: Thompson v. White, 1 Dall. 424 [1 Am. Dec. 252]; Church v. Church, 25 Pa. St. 278. This was a similar trust, the land being conveyed for the purpose of obtaining a patent: Plumer v. Reed, 38 Id. 46; McCulloch v. Cowher, 5 Watts & S. 417; Parke v. Chadwick, 8 Id. 96; Morey v. Herrick, 18 Pa. St. 128; Renshaw v. Gans, 7 Id. 118; Sheriff v. Neal, 6 Watts, 534; Rankin v. Porter, 7 Id. 387; Lynch v. Cox, 23 Pa. St. 265. It was insisted in the argument that the case falls within the fourth and fifth sections of the act of the 22d of April, 1856. As to the creation of the trust, the fourth section is prospective, and as this case arose before the passage of the act, nothing need be said. And as to the limitation for

enforcing a resulting trust confined by the proviso to the sixth section to two years after the date of the act, we ought to express no opinion, the point not being raised in the court below. The question of actual possession by the cestui que trust during the time when the limitation was running may have to be submitted to the jury under the evidence to be given at a future trial, and we ought not to anticipate it. The judge having put the case as to the trust solely on the incompetency of parol evidence to vary the effect of the deed, the case must go back for a new trial. We discern nothing in the circumstances in evidence to raise the question of estoppel.

Judgment reversed, and a venire facias de novo awarded.

RESULTING TRUST MAY BE ESTABLISHED BY PAROL EVIDENCE: Mutual Ins. Co. v. Deale, 79 Am. Dec. 673, and cases collected in note 680; Pritchard ▼. Wallace, 70 Id. 258, note.

ONE WHO PROCURES PROPERTY OF ANOTHER BY ARTIFICE OR FRAUD IS TRUSTEE EX MALEFICIO: Ryan v. Dox, 90 Am. Dec. 696, and note 708; and see Beegle v. Wentz, 93 Id. 762, and note 765.

PAROL TESTIMONY TO ESTABLISH TRUST SHOULD BE CLEAR, and even then received with great caution: Corbit v. Smith, 71 Am. Dec. 431, and see note 438.

THE PRINCIPAL CASE IS CITED to the point that where one procures a title which he could not have obtained except by a confidence reposed in him, and abuses the confidence, he becomes a trustee ex maleficio, in Seichrist's Appeal, 66 Pa. St. 242; Faust v. Haas, 73 Id. 301; and is cited to the point that the fourth section of the act of April 22, 1856, relating to trusts, is clearly prospective, in Ballentine v. White, 77 Id. 25; Merriman v. Moore, 90 Id. 81.

On a new trial, which was awarded in the principal case, the verdict was for the plaintiff Ritchey, and the defendants took a writ of error. The judgment was affirmed, the court observing that, as the defendants "claimed title to the land against the express language of the deed, they were bound to show by clear and satisfactory evidence that there was a resulting trust in favor of Sparks, and that he had taken such possession of the land, or exercised such exclusive acts of ownership over it within twenty-one years from the time the trust arose as would prevent its extinguishment. And as they failed to do this, the verdict of the jury was rightly for the plaintiff”: Lingenfeller v. Ritchey, 62 Pa. St. 123, 128. And the latter case is cited to the point that the evidence to establish a resulting trust, especially one ex male. ficio, should be clear, explicit, and unequivocal, in Kistler's Appeal, 73 Id. 400; Earnest's Appeal, 106 Id. 319.

ROBERTS'S APPEAL.

[59 PENNSYLVANIA STATE, 70.]

CONDITION IN WILL. — The words "in case," when used in a will, create

condition as clearly as where the words "if," "upon," and the like are used.

WILLS.

PRIMA FACIE GIFT OF PRODUCT OF FUND is the gift of that product in perpetuity, and consequently a gift of the fund itself. EVIDENCE OF INTENTION TO VEST LEGACY. -Where a testator provides for the investment of a certain fund, the income to be applied to the support and education of his nephew, and further provides that if he attains to the age of twenty-one years the principal is to be given to him, the severance of this fund from his estate is evidence of an intention to vest the legacy in his nephew, and this presumption is especially strong where no limitation over is made to any person in the event of the decease of the nephew before attaining age.

VESTED LEGACY.—Where a testator directed that one thousand dollars should be invested out of his estate, the income to be applied to the support and education of his nephew until he became of age, and in case he lived to that age he was to get the principal, and where there was no bequest over, the legacy to the nephew was a vested one, and upon his death before coming of age it passed to his heirs.

IT IS EVIDENCE OF INTENT TO VEST LEGACY when the testator in other cases limited the vesting of legacies to other persons, by proper provis ions, and failed to make such provisions in this case.

THE opinion states the case.

D. Fleming, for the appellants.
Herman Alricks, for the appellee.

By Court, THOMPSON, C. J. The testator, George Geiger, deceased, left a will, containing numerous bequests and devises, and among them one to a grandnephew, in the following words, viz.: "I direct my executors to vest in stock, or in the purchase of good real estate in the county, the sum of one thousand dol lars; the dividends, rents, or profits of which to be applied to the support and education of my nephew, George Geiger, son of Hiram Geiger, deceased, until he attains the age of twentyone years; and in case he lives to attain that age, I give the stock and money, or land, to him and his heirs." Geiger died before attaining his majority, unmarried, and the question in the court below was, whether the corpus of the bequest was vested in the legatee, or was contingent, depending on his attaining the age of twenty-one years; in other words, whether it passed under the intestate laws to his legal representatives, or to the residuary legatees in the will. The court below held that it was vested and descended to his heir at law under the intestate acts.

Were it not for certain rules of construction, in themselves somewhat artificial, but more than once applied to cases of bequests of the above description, I should feel much inclined, as was the learned judge below, to hold the bequest of the corpus of the legacy in this case to have been contingent, and not vested at the death of the legatee. The words are, "in case he lives to attain that age [twenty-one years], I give the stock, money, or land to him and his heirs." The words "in case" imply a condition as explicitly as "if," "upon," and the like, and express a contingency, which contingency was in this case dependent on attaining the designated age.

If the words just quoted stood alone, no doubt that the legacy would have been contingent, but they are preceded by what it is thought, on authority, controls and leads to a different result in this case. In the first place, the testator severs from the body of his estate one thousand dollars, to be invested, to make a provision for the support and education of his nephew. This is an indication of an intent to make him the beneficiary of the corpus of the legacy, especially as here, where he provides no limitation over to any person or persons in the event of the decease of his nephew before attaining age. The setting apart of the sum mentioned, making no disposition over in the event of death before twenty-one,-and the purpose being one of support and education, are strong circumstances of an intention to give the income until twenty-one, and then the possession of the principal. The law indeed attributes this intention in the absence of anything to control this form of bequest. Adamson v. Armitage, 19 Ves. 416, cited and recognized in Hellman v. Hellman, 4 Rawle, 440, in Schriver v. Cobeau, 4 Watts, 130, and in Garret v. Rex, 6 Id. 14 [31 Am. Dec. 447], clearly establish the rule, that prima facie the gift of the product of a fund is a gift of that product in perpetuity, and consequently a gift of the fund itself. As an indication of intention, it seems to me it is not weakened by fixing a period at which the gift of the principal is to take effect.

In Schriver v. Cobeau, supra, the bequest was: "I give unto my nephew, Alexander Cobeau, the interest arising from one share of five-per-cent state stock, the nominal share being one thousand dollars; and when the principal is paid off by law, then I give to him the principal arising from such share.” This court held that the legacy, both as to the corpus and product, was vested upon the principle announced in Adamson