45 N.J. Eq. 478 | New York Court of Chancery | 1889
The bill in this case was filed for the purpose of having the meaning of two provisions of the will of Charlotte Bell, deceased, judicially settled. The testatrix died in May, 1860. Her will was admitted to probate in April, 1867. By her will the testatrix gave the whole residue of her estate, after the payment of her debts, funeral and testamentary expenses, to her executors, with direction to invest the same, and then, in the language of the will
“ To pay the interest and income thereof from time to time, as the same shall be received, to my son, Francis E., during his lifetime, and in case his wife, Hannah E., should survive him, then to her, during her widowhood, in like manner, one-half of the said interest and income; the remaining one-half to be put at interest and kept invested at interest, with the interest thereon from time to time accruing, and at the decease of my said son Francis, or in case his said wife should survive him, at her remarriage or decease, then to pay said principal sum, with the increase thereof, and all arrears of interest or income.remaining unexpended, to my other then surviving children and to*480 the heirs of any deceased child, in equal shares, the heirs of any deceased child to take their parent’s share, in equal parts, if there be more than one."
Francis E. Bell, the life-tenant of the whole fund, died in November, 1888, leaving one child, Amos S. Bell. Hannah E. Bell, the person who was the wife of Francis E. when the testatrix died, also survived Francis E., but she was not his wife at the time of his death. She was divorced from him by a decree made by this court on the 9th day of June, 1883, at her instance, for his fault. The decree was absolute, divorcing the parties from the bond of matrimony, dissolving the,marriage between them and freeing and discharging each from the obligations thereof.
Out of this condition of facts two questions arise: First. Is Hannah E. Bell, notwithstanding that she has, since the date of the decree of'-‘divorce, been a feme sole, and is not now and has never been the widow of. Francis E. Bell, deceased, nevertheless entitled to one-half of the income of the fund set apart for the ase of Francis E. during his life? And, second, will Amos S. Bell, the son of Francis E., be entitled, by the terms of the
This view conforms to precedent. In Bullock v. Zilley, Sax. 489, it appeared that the testator directed a sum of money to be put at interest, and the interest to be paid annually to the support and maintenance of his nephew, Thomas Bullock, and
The other question relates to the distribution of the fund, and may be properly stated as follows: Is Amos S., the only child of the testatrix’s son Francis, entitled to a share of the fund ? The testatrix directed that the fund should be distributed either on-the death of Francis, or in case his wife Hannah survived him-, at her remarriage or on her death; and in directing to whom distribution should be made, she said: “ To my other then surviving children and to the heirs of any deceased child, in.equal shares, the heirs of any deceased child to take their parent’s share, in equal parts, if there be more than one.” Now, as I understand this direction, it embraces all the testatrix’s children who shall survive to the time when the fund becomes distributable, and also the issue of any who should die before that time. Francis was necessarily excluded from the distribution, because no division was to be made until his death, but in providing that the issue of a deceased child shall succeed to its parent’s share, it will be observed that the testatrix employs the most comprehensive language. Her words are, “ and to the heirs of any deceased child.” Francis is a deceased child, and Amos is his son. The words just quoted are broad enough to embrace Amos. He ought not to be excluded, except such appears to have been the intention of the testatrix. No such intention ap