46 N.J. Eq. 333 | New York Court of Chancery | 1890
The general scheme of Jason Elwell, evinced by his will, was, that all his estate should be converted into money and invested by his executor upon proper interest-bearing security, and that, out of the income, the taxes upon the funds invested, together with the expenses of the trust, should be first paid, and that then the remainder of the income should be paid to his wife during her life. The wife was to have power to dispose of the principal of the trust fund by her will, within a certain class of persons— her children and grandchildren. To the point where the testator provides for the contingency of his wife's failure to execute-the power, the language of the will is free from doubt. The-
The difficulty which occasions this suit arises in later passages of the will. The testator, conceiving that his wife might neglect or, for some reason, refuse to execute the power of appointment which he gave her, and that because of such failure the trust fund would, by law, be equally distributed among his next of kin, and that by such distribution the grandchildren, John and Theodore Campbell, would not be paid $200, which, under an agreement that existed between him and his wife, they were to have in addition to a share of the trust fund, provided that his executor should pay the $200 to his grandchildren before any distribution of the fund after his wife’s death. To this provision he adds language (the effect of which is in question) as follows:
“And it is understood and intended on my part that said grandchildren * * * are to inherit equally in addition as one of the heirs of my estate, the same as if the above bequest had never been made.”
The will does not definitely disclose what the verbal agreement between the husband and wife was, but it satisfactorily indicates that it was that the grandchildren were to have $200 in addition to the share which would be distributable to them in case the power of appointment should not be executed. Failure to execute that power would defeat the contract, and it was to guard against its defeat in that way that the $200 were provided for the grandchildren in direct and imperative terms. After such provision, if the power should not be executed, the $200 and the law’s distribution of the remainder would give the ■ grandchildren the shares intended for them.
In this situation, what force and effect had the words last quoted from the will ? Did they limit and restrict the discretion in appointment which had previously been given to the widow, by requiring that she should give at least one-third of the trust
I am constrained to think that the second proposition of this question is correct. The language considered is parcel of a sentence which made provision for the contingency of the wife’s failure to execute the power of appointment, whereby the trust fund would be distributed by law. The testator’s belief was, that in such an event the fund would “descend equally ” to his “ heirs at law,” and in such a manner that his grandchildren would not have the additional $200 that he intended for them. In other words, he contemplated that there •would ’be a distribution to his next of kin according to the statute regulating the distribution of estates of intestates, whereby the $200 would be lost to the grandchildren. His first step was to secure the $200 to the grandchildren, and then to declare his understanding of the law and his intention to be that they should take their proper distributive shares without reference to the fact that they would also take the legacy. His expression was, that they were to “inherit equally,” that is, take by law, and not under the will, “ in addition as one of the heirs at law of my estate,” that is, in the place of their mother as one of his, the testator’s, children, “ the same as if the above bequest [of $200] had not been made.”
The entire clause was predicated solely upon a failure to execute the power of appointment, and is distinct from the expressions which create the power.
It is obvious, that to adopt any other interpretation of this part of the will would do violence, not only to its language, but also to the grammatical construction of the sentence of which it forms a part.
Another question propounded is, from what moneys the $200 given to the grandchildren is to be taken. Is it to be paid out of the proceeds of the sale of the Earetown property, or out of the Philadelphia moneys, or pro rata from each ?
The will of Jason Elwell directs that it shall be paid from the trust fund. That fund consists of all the moneys of the estate,
The power of appointment extends only to the balance of the fund after the $200 shall be paid, and the distribution made by its execution is not to be considered until that payment shall have been made. After its payment the severance may take effect. It follows, then, that each part of the entire trust fund should Fear its proportionate share of this burden, and that the $200 must be paid by a percentage contribution.
The last inquiry concerns the effect of that part of Nancy ElwelPs will which seeks to charge the proceeds of the Daretown ¡property with the expense of settling her estate.
Mrs. ElwelPs right in the trust fund was limited to the net income from it during her life and a power to distribute the principal of it, by her will, among certain persons. She had no power to appoint any part of it to her own uses, and hence had no power to direct the payment of the expense of settling her ■estate.from it. That expense cannot be charged to any part • of the fund.
The administrator will be directed in accordance with the ■opinion above expressed. The costs of all the parties to this suit, and moderate allowances to be made to counsel, will be directed to be paid from the entire trust fund, and, at the distribution, to be charged to the two funds, made by the appoint.ment, pro rata.
