51 N.J. Eq. 620 | N.J. | 1893
The opinion of the court was delivered by
This is an appeal from a decree of the chancellor on a bill filed for the construction of the will of Thomas Barnard, deceased, and for directions as to the execution of its provisions.
The will is dated January 17th, I860. The testator died October 7th, 1877. When the will was made he had a wife, four daughters and two sons: Emily, aged twenty-six, and then married; Charlotte Ellen, aged twenty-two, then and still unmarried : Mary Letitia, aged twenty years, then married; Alice Isabel, aged ten years, married in 1876, and who died before her mother, leaving two children, Lucy and Nellie Haring; Alfred Thomas, aged eighteen, and Arthur Clay, aged fourteen. Charlotte, the widow of deceased and his sole executrix, died January 5th, 1890. The following members of the family were
When Thomas Barnard died all his children were of full age, the youngest being over twenty-seven. When he made his will two of his children, both daughters, were over age; one was married and the other unmarried. His third child, a daughter, was nearly of age and married, and the other three children, two sons and a daughter, were minors.
The will, after giving to his wife, for her life, all the real and personal estate of which he should die possessed, proceeds:
“I wish and will at my death that all property of whatever kind of which I may die possessed may as soon as practicable, be realized and settled securely on her in some safe investment, the interest of which I trust in God will comfortably support her, the principal to be untouched, unless the interest of that left be too small for her support, at her death I will it to be kept in the same shape or form, for the support of the children, not of age or married ; on the marriage of my four daughters, I will it to be equally divided between the said four girls and the share settled on each of them for their lifetime; all and except one dollar each to my two sons, trusting that they will follow my example of industry to gain what they may require.”
The learned vice-chancellor, in construing this will, held that,, after the life provision for the widow, the provision for support was intended to embrace both minor daughters and sons, and likewise unmarried adult daughters, but not unmarried adult sons, and that, under this construction, the unmarried daughter is entitled to the benefit of the provision for support; that she has a right to be supported, so long as she remains single, out of the income of the testator’s estate, but not to- its whole income unless it is only sufficient to give her a proper support according to her rank and condition in life. He held that there was no gift of the income, either directly or by implication, and holds that there is not the least indication that the testator-meant, as the class (his children) diminished in number, the survivors should take the whole. He further says: “ My conclu
He then says: “The more difficult and pez’plexing question is, who takes the remainder ? In other words, what provision shall be made in the settlements as to who shall take the remainders on the death of the life tenants? The will gives no direct answer to this question.” He also says: “No gift of the remainder is made unless it is znade by implication.” We agree with the learned vice-chancellor in the conclusions reached by him up to this point.
He then says: “But at this point we ezzter the region of doubt. One of two constructions must, however, be adopted, namely, either that the testator died intestate as to the remainder or that there is a gift of it, by implication, to the issue of his daughters.” He adopts the latter construction. It is a case where there must be much hesitation in adopting any construction as to the remainder of the estate. The rizle is correctly laid down by the vice-chancellor, that to justify a gift by implication, the gift must rest on a probability of azi intention so strong that an intention contrary to that which is thus imputed to the testator cannot be supposed to have existed in his znind. Applying this test, we cannot come to the conclusion reached by him.
What was the intention of the testator as to this remainder ? It can be reached by adopting the view that he did zzot attempt to make any disposition of his estate beyond the lives of his wife and daughters. It is a fair inference, from his will and the circumstances surrounding its execution, that his first care was for his wife for her life; next, to take caz’e of all his children during their minority unless they were provided for by maz’riage;' then to care for his daughters during their lives, providing first for ample support for his unmarried daughter out of the income of his estate. He took better care of his daughters than of his sons during their lives because he thought it to
We therefore reach the conclusion that the views of the vice-chancellor are correct except as to the remainder of the estate after the death of the four daughters, and as to that we find that
For reversal — The Chief-Justice, Abbett, Dixon, Lippincott, Bogert, Krueger, Phelps, Smith — 8.
.For affirmance — Depue, Reed, Van Syckel — 3.