Judgment was entered in the Supreme Court, March 6th 1876,
Per Curiam. —This being a petition to the Orphans’ Court for partition of the real estate of the late William Wilkins, situate in Wilkins and Peebles townships, the true question is whether the daughters named in the petition were seised or possessed of any estate, in law or equity, which could be parted and divided among them consistently with the will of the testator. If they bad not, whether by reason of an existing active trust inconsistent with any estate, possession and control on their part, or by reason of an absolute conversion into personalty, the petition must be denied; otherwise the will of the testator would be frustrated. That they had no such seisin or possession at law or in equity seems to be very clear. They had no estate as heirs at law, for the will took the estate out of the course of descent, and cast it upon the trustee for purposes which concern only a limited number of the heirs, viz.: these four daughters. As to these- daughters no trust of the land itself was created, but a trust only of the rents until sale, and then a trust of the purchase-money; while the nature of the trust of the rents, as we shall see presently, is inconsistent with such a devise of the income or profits as carries an estate in the land. The devise is to James A. Hutchison, his heirs and assigns. This carried the whole legal estate to him, at law. The devise was for “the purposes, trusts and conditions hereinafter mentioned, and for no other purposes.” These hereinafter-mentioned trusts, therefore, constitute all the equities of the trust, for the testator says there shall be none other. The first condition of the trust is, “ He shall take the said property into his possession and eharge.” This is inconsistent with a partition, which necessarily invests the purparts in the daughtei’S, or carries the property to an immediate publie sale, on terms differing from those the discretion of the trustee may *513dictate. The will then continues, “ and at his option either rent the same, upon such terms as he may conceive conducive to the interests of the trusts with which he is hereby invested, or malee sale of the same for .such prices, upon such terms, and upon such securities as he may deem safe, and execute such contracts and deeds, in fee simple or otherwise, as may be necessary to secure titles to the purchasers, according to the terms of their respective contracts.” These are the two and the only purposes, the testator having said, “ and for no other purposes,” of the trust declared of the property itself, and both are inconsistent with any estate in the land in these daughters. A partition would take the land out of the “ possession and charge” of the trustee, and prevent the exercise of either power to rent or to sell “ on such terms and securities as he might deem safe.” He could make neither contracts nor conveyances, for the course of partition would supplant all his powers. The trusts as to the daughters are express, and therefore inconsistent with an implied trust, by reason of income or otherwise, for the will proceeds: “ And in further trust, that the said James A. Hutchison, upon the receipt of the rents or purchase-money, shall pay the same over to my daughters Maria D. Sanders, Catherine H. Hutchison, Sophia B. Carr, and Henrietta C. Wilkins, their heirs and assigns in equal proportions,” &c., “it being my intention by this clause of my devise that my trustee shall hold the property for the uses and objects mentioned,” thus excluding the daughters, “ with full power to sell and dispose of the same as occasion may offer, so that a partition of the property may become unnecessary.” This clause is very demonstrative of the intent of the testator. Thus he says he intends that the trustee shall hold the property and sell (not rent) and dispose of the same as occasion may offer. The prime intent is to sell whenever circumstances make it “ conducive to the interest of the trusts,” as he had before said. But as occasions may not offer when it would be conducive to these interests to sell, he had therefore given the option to rent. These too were intended to be the means which would render a partition unnecessary. This is an answer also to the argument that the option of the trustee to rent might be executed so as to create a perpetuity. Such an option would be an abuse of his discretion and contrary to the main and plain intent of the testator that he should make sales as occasion should offer. The option to rent is evidently secondary and ancillary to the power to sell. The main intent deduced from this clause is' made more manifest in the next succeeding paragraph but one, which declares that the common fund for distribution amongst these four daughters in this testament will consist of the sales of his real estate in Wilkins and Peebles townships, &c. This intention is further aided by the fourth paragraph following, in which he declares that the direct devise of the Homewood mansion and the described *514sixty-seven acres annexed to it, should after the death of his wife “ go into the possession, charge and trust with the other estate, to be held and managed in like trust as is hereinbefore confided to him, James A. Hutchison, in the character of my trustee, as herein-before mentioned.” Such being the intention of the testator, that the trust to sell shall be the main purpose, and the option to rent only secondary and ancillary, the trustee would clearly become amenable to the control of the Orphans’ Court under the 4th sect, of the Act of 29th March 1832 relating to Orphans’ Courts, which pi'ovides that the jurisdiction of the Orphans’ Court shall extend to and embrace “ generally all cases within their respective counties wherein executors, administrators, guardians or trustees are or may be possessed of, or undertake the care and management of, or are in any way accountable for any real or personal estate of a decedent, and such jurisdiction shall be exercised in the manner hereinafter provided.”
The 19th section of the Act of 16th June 1836, relating to the jurisdictions and powers of the courts is a substantial re-enactment of the same provision's. This subject was carefully considered in Dundas’s Appeal, 14 P. F. Smith 325, in which it was held, under these clauses, that the Orphans’ Court has power to control testae mentary trustees in the exercise of powers over real and personal estate. In this case therefore the trustee, were he to undertake to continue to lease contrary to the plain intent of the testator, that his real estate should be sold as occasion should offer as a fund for these daughters, would be amenable to the control of the Orphans’ Court. It is very clear it would be an abuse of his option to lease, were he to make leases conflicting with the testator’s intent to sell and furnish such a fund for distribution among his daughters, or contrary to the policy of law which forbids perpetuities. The lessees themselves may, under the decision in Dundas’s Appeal, be made parties to the citation, if it should be necessary. The trust therefore being inconsistent with partition and possession of the daughters, and no estate in the land being conferred on them, the petition was properly refused.
The decree of the Orphans’ Court affirmed and the appeal dismissed at the costs of the appellant.
Sharswood and Paxson, JJ., dissented.