44 N.J. Eq. 450 | New York Court of Chancery | 1888
This is a suit for a legacy. The case presents but a single question, and that is, What is the complainant entitled to, $12,000 or $6,000?
The complainant is a great-grandson of Mrs. Mary A. McClelland, deceased. By her will, made in March, 1864, Mrs. McClelland gave her two grandchildren, Howard W. Bishop (the father of the complainant), and Alexander McC. Bishop, each the sum of $3,000. Howard W. Bishop died in Septem
“ And I hereby order and direct my executors to pay over one-half of the clear yearly income of said sum to Alexander, and the other half of said income to the guardian of my great-grandson, until my great-grandson shall become of lawful age, when my executors shall pay over the same, together with the principal thereof, to my great-grandson and my grandson Alexander, share and share alike. Should either of said descendants die, the survivor shall have the whole of the interest on said sum. Should both these die before the said great-grandchild comes of age, the whole, together with the principal thereof, shall revert to my estate, to be disposed of accordingly.”
By a further codicil, made in January, 1869, the testatrix said:
“ If my grandson, Alexander McC. Bishop, and my great-grandson, Howard Bishop, both die without children, then their and each of their shares shall revert to my estate.”
The testatrix died in February, 1870. Her grandson, Alexander McC. Bishop, died without issue, never having been married, in April, 1885. The complainant attained his majority in February, 1888. Shortly after that event, he made demand on the defendants for the payment of the whole $12,000, claiming, that as he had survived his co-legatee, he, on attaining his majority, became entitled, by the true construction of the will, to the whole fund. The defendants offered to pay him one-half of the whole fund, together with the interest on the whole up to the time he attained his majority, but this he declined, and thereupon brought this suit.
The coui’t cannot, in this suit, or on the present record, decide any question except this, Is the complainant entitled to the whole fund in question ? If it is found that he is not, but is only entitled to half, the question where the other half goes,
The complainant puts his right to the whole fund in question on two grounds : First, that there is a gift made to him, by implication, of the whole fund; and second, it is claimed that where-a bequest is made to two persons of a particular sum, payable at a future time, with direction that the money shall, in the meantime, be invested, and the interest -thereof be paid to the legatees, and there is also a gift of the interest of the whole fund to the-survivor, in case one dies before the time for payment arrives,, that the gift of the interest in such case carries with it the whole-fund, both principal and interest. The claim is, that, by force of this rule, the complainant is entitled to the whole fund. On neither ground can the complainant’s claim, in my judgment, be-sustained.
A bequest may undoubtedly arise from implication, but to-warrant the court in so declaring, there must be something more-than conjecture to support its declaration. The implication must be a necessary one. The probability of an intention to make the-gift implied must appear to be so strong, that an intention con
The other claim of the complainant is, in my opinion, also groundless. There can be no doubt that a gift of the interest, income or produce of a fund, without limitation as to continuance, or without limit as to time, will, according to a settled rule
As I construe the testamentary provisions on which the complainant rests his claim, he is entitled to one-half of the fund in question, together with the interest on the whole fund from the time of the death of his co-legatee up to the time the complainant attained his majority, but to nothing more.