2 Barb. 457 | N.Y. Sup. Ct. | 1848
The testator, Richard Towning, by his last will and testament, devised and bequeathed all his estate, both real and personal, to the complainants Burrill and Woolsey, residing in New-York, and the defendants Sheil and Ballard, residing in England, upon certain trusts therein mentioned, and appointed the said trustees his executors. Sheil and Ballard refused to qualify as executors, or to act as trustees. The executors were invested by the will with full power, and were expressly directed, to sell the real estate. They were also directed to invest £3000 sterling in England, in the joint names of Sheil and Ballard as trustees, for certain purposes stated in
As to the questions which were raised upon the argument in reference to the power of this court to divert the investment from England, there is one conclusive answer; and that is, that such a change could only be made with the assent of all persons interested. But inasmuch as many of the parties in interest are infants, and are not within the jurisdiction of (he court, the investment must be made in pursuance of the directions contained in the will. (See Wood v. Wood, 5 Paige, 596.)
The next subject for consideration is the construction which is to be given to the will. As no questions were raised as to the legality of the trusts, I shall assume that they are valid. (See Gott v. Cook, 7 Paige, 521, 538; De Peyster v. Clendining, 8 Paige, 305; S. C. 26 Wend. 21.) The limitations contained in the third, ninth and tenth sections, are the only parts of the will in reference to which any doubt was expressed. The will directed that the real should be converted into personal
I. Is the power of alienation suspended for more than two lives in being at the death of the testator, under the provisions of the third section of the will? The limitations during the lives of Mrs. Husband and Mrs. Fisher, are unquestionably valid; the absolute ownership of the property not being suspended during the period of such limitations, for more than two lives in being at the death of the testator. The only question which arises upon this section of the will, is as to the limitation over to the surviving issue of Mrs. Fisher. By that limitation the principal sum of £3000 sterling is given to the issue of Mrs. Fisher, to be at their own disposal as soon as they shall have, respectively, and severally, attained the age of twenty-five years; the interest, in the meantime, to be paid to them. And in case of the death of Mrs. Fisher before Mrs. Husband, then the said sum of £3000 is to be divided “ at the death” of Mrs. Husband, amongst the surviving issue of Mrs. Fisher, as soon as they shall have respectively attained the age of twenty-five years. The words “ at the death,” were undoubtedly intended to mean after the death, and should be so construed.
Do these provisions of the will suspend the absolute ownership of the property beyond the lives of Mrs. Husband and Mrs. Fisher ? It is a well settled rule in equity that where a legacy is given to a person to be paid at a particular age, or at the end of a fixed term, he takes a vested interest—debiturn in presentí solvendum in futuro. (Jackson v. Jackson, 1 Ves. sen. 217. Gedney v. Vaughan, 2 Bro. P. C. 254. Bolger v. Mackell, 5 Ves. 509.) And even when there was a bequest to a person when he should have attained the age of twenty-five, and the testator empowered his executors, and trustees to place the money at interest, which interest he directed to be applied
II. .The next inquiry is as to the proper construction to be given to the ninth section of the will.
It appears by the proofs that Mrs. Hughes, the person during whose life the first limitation, contained in this section, was made, died before the testator. Of course the statute has no application to the limitation to her. (1 S. F. 773, § 1.) The section of the will now under consideration gives the principal sum of two thirds of the residue of the estate to the issue of Mrs. Hughes, nominatim; at her death, to be paid to them as soon as they shall severally and respectively have attained the age of twenty-five years. This bequest is governed by the same rules as have been laid down in reference to the third section ; and on the death of Mrs. Hughes her children take a vested interest.
The last clause in this section of the will, in its connection, refers to the interest accruing before the happening of the event upon which the bequest is to vest in possession; and, in terms, disposes of the interest merely, and not the principal, during
III. The questions which were raised upon the tenth section are, in most respects, similar to those which have been already considered. By this section the interest upon the remaining one-third of the residue of the estate is given to Mrs. Bayne for life, and on her death the principal sum is given to the issue of Mrs. Fisher, as soon as they shall have severally and respectively attained the age of twenty-five years; the interest to be paid to them until that age. The phraseology of this section is, in some respects, different from that of the third and ninth sections. The principal sum is given to the issue of Mrs. Fisher as soon as they shall attain the age of twenty-five years. And, in the mean time, the interest is to be paid to them absolutely. According to the cases above cited, a bequest to a person when he should attain the age of twenty-five years, and an authority given to the executors and trustees to place the money at interest, with a direction to apply the interest to the education of the legatee, was considered a bequest of a vested interest.
The last clause of this section of the will is substantially the same as the last clause of the ninth section, and refers to the interest, and not to the principal. There is therefore no suspension of the absolute ownership for more than two lives in being at the death of the testator, under this section of the will. It appears by the proofs that Maria Hughes, one of the legatees mentioned in the ninth section of the will, died before the testator ; and two questions were raised upon the argument, 1. Whether her legacy lapsed; 2. If it did lapse, who is entitled to it? As these questions are not raised by the bill, and as the rights of the parties cannot be satisfactorily settled upon the case as
A decree must be entered declaring the construction of the will according to the principles above laid down; and directing that the complainants be appointed trustees in the place of Sheil and Ballard, and be authorized to invest in England, in their own names, all the moneys which were directed by the will, to be invested.in England in the names of Sheil and Ballard ; and that they be clothed with all the powers as trustees which the said Sheil and Ballard would have been invested with in case they had accepted the trust conferred upon them by the will. And that the costs of all the parties be paid out of the estate in the hands of the executors.