Equitable Guarantee & Trust Co. v. Rogers

| New York Court of Chancery | Sep 15, 1895

Wolcott, Chancellor.

Theodore Rogers, late of New Castle Plundred, in New Castle County, and State of Delaware, died during the month of October, A. D. 1871, having first made and published his last will and testament, bearing date the 14th day of January, A. D. 1867, which was duly admitted to probate by the register of wills in and for said county. The testator, by his will, appointed his three brothers — Jason Rogers, Jacob S. Rogers and Columbus B. Rogers — executors and trustees thereunder. Letters testamentary were in ■ due form of law issued unto Jacob S. Rogers and Columbus B. Rogers, the surviving executors under said will, wdio accepted the trust therein created, the said .Jason Rogers, the other, executor, having predeceased the testator.

By said will, the testator gave, bequeathed and devised all his estate, real, personal and mixed, whether in the State of Delaware or elsewhere, now in possession or hereafter to be acquired, unto his said three brothers, the survivor or survivors of them, subject to the following uses, purposes and trusts:

1st. In trust, to hold his mansion, farm and all the personal property situated thereon, for the sole use and benefit of his wife, for the term of her natural life, or during widowhood, and after her death, or marriage,, for the use of his son, Theodore B. Rogers, until he shall have attained his majority; and so soon as he shall arrive at the age of twenty-one years, or if he shall have arrived at the age of twenty-one years when the marriage or death of his said wife occurs, then to grant, convey and deliver the same to his said son, Theodore B.. Rogers, absolutely; but, if after the marriage or decease of his said wife, his said son shall die before arriving-at the age of twenty-one years, then the same to fall into-his residuary estate, and- if his said wife shall survive-his said son, then at her marriage, or death, the same-shall fall into and become a part of his residuary estate.

2d. In trust to pay each and every year out of the-income of his estate, to his wife, Mary 1ST. Rogers, so long as she shall live and remain his widow, the sum of $5,000, to be paid to her in two equal semi-annual payments; the first payment to be made within six months-after his death. And after the marriage, or decease, of' his said wife, so much of the capital of his estate as may have been held to answer said annuity, shall also fall into and become a part of his residuary estate.

3d. In trust to hold all the rest and residue of his estate, under and subject to the following interests, purposes and trusts, that is to say, in trust to apply so much of the income thereof as the trustees may deem proper to the support and education of his children, and the; issue of any deceased child or children, during their respective minorities.

4th. In trust, when his first child shall have attained the age of twenty-one years, to divide his residuary estate, which he defines to be “ his whole estate,” except that portion thereof devised in the first section of his will for the use of his wife, Mary 1ST. Rogers, and his son Theodore B. Rogers, and, except further, such principal or capital sum as may be sufficient to produce the yearly bequest given and granted to his said wife, if she shall then be his widow, into so many parts or shares as there may be children and deceased children leaving lawful issue, at the time of the division. The testator then directed as follows:

“And as my daughters respectively arrive at twenty- ' one years, to pay over to them respectively the income of their respective shares of my estate, for and during their natural lives, upon their own receipts only, and for their separate use and benefit, free from the control of any husband; the payments to be made annually, or oftener, as the same may become due.”

Then follows a limitation over after the decease of any of his daughters, to such uses as she shall by will appoint, and in default of such appointment, to distribute her share among her children, etc.

By item 6th, he ordered his executors, in their discretion, to convert into money, any of his residuary estate, real or personal, and reinvest the same in certain prescribed securities.

Item I provides as follows:

“ I hereby declare that my said executors shall stand possessed of the accumulations of my residuary estate and the income thereof, upon and for the same trusts and subject to the same declarations hereinbefore made concerning the estate, or part or share of my estate, from which such accumulations shall have proceeded.”

Item 8 is as follows:

“ I declare that if any portion of my estate shall fall into and become a part of my residuary estate, after the period of division mentioned in section 4, then the same shall be subject to division and distribution, and held and assigned in like manner and for the same uses as are declared concerning the other part of my .residuary estate.”

The testator left to survive him a widow, Mary IST. Rogers, who is still living and unmarried, and three children, namely, Annie R. du Pont, Theodore B. Rogers and Helen R. Bradford, all of whom are still living and over twenty-one years of age.

On the 4th day of May, A. D. 1879, Annie R. du Pont, the eldest child of the testator, arrived at her majority, and the trustees, pursuant to the authority contained in item 4 of the will, divided certain of the funds and securities, and transferred to themselves, as trustees for each child,'the cash and securities allotted to each one. They retained the following securities to raise the annuity for the widow:

Two hundred and fifty shares of the Rogers Locomotive & Machine Works, par value, $25,000, inventoried at $31,000.

Three hundred and thirty-four shares of the Patterson & Hudson R. R. Co., par value, $15,700, inventoried at $15,700. 1

Three hundred and sixty-three shares of Patterson & Ramapo R. R. Co., par value, $18,150, inventoried at $18,150. Aggregate appraised value, $64,850.

They also retained the balance of the securities, amounting to $135,477.50, under the general trust of the will.

On April 16th-, 1891, they made a second division of cash and securities among the children of the testator, the trust estate having greatly increased in value by the accumulations of income, and the enhancement in the value of the investment, and retained for the general trust the three securities above named, which, in the opinion of the trustees, were then worth $552,275, the stock of the Rogers Locomotive & Machine Works being estimated by them to be worth $500',000.

On June 20th, 1891, upon their own petition, Jacob S. Rogers and Columbus B. Rogers relinquished the trusteeship, and the Equitable Guarantee & Trust Co. was appointed trustee, and the above-mentioned securities were transferred to the new trustee.

The Rogers Locomotive & Machine Works made regular semi-annual cash dividends from 1872, to January, 1893, of 10 per cent., except from July, 1876, to July, 1883, when the dividends were 5 per cent, semiannually.

At a meeting of the stockholders of the Rogers Locomotive & Machine Works, held February 15th, 1893, it was resolved:

“ That it is the sense of this meeting that the offer of Robert S'. Hughes be accepted, and that the board of directors proceed to make sale of the plant in accordance with the details and particulars specified in a memorandum of sale and schedule presented by the president of this meeting, and that the board of directors be authorized to accept the sum of $2,750,000 in the common stock of the Rogers Locomotive Company, in payment of said property.

“That upon the sale being made, as in the former resolution, the directors proceed to wind up and dissolve the corporation pursuant to the charter.”

The schedule referred to in the above-quoted resolution included a very large amount of land, buildings, boilers, machinery, tools, materials on hand, water rights, good-will, contracts and orders on hand, drawings, patterns, and all personal property on the land of the company. It included every asset of the company, except cash and securities on hand, and bills receivable, and debts due and owing to the company.

The sale of the plant was subsequently consummated, the company ceased to do business, and proceeded to wind up its affairs preparatory to a final dissolution.

On March 7th, 1898, the directors resolved, that a dividend be made to the stockholders, of ten shares of Rogers Locomotive Company, on every share of the stock of the Rogers Locomotive & Machine Works, and pursuant to this, the trustee received twenty-five hundred shares of stock of Rogers Locomotive Company, par $100.

On March 16th, 1893, the directors resolved,

“ That a division be made of 100 per cent, of the cash assets, being the amount of the principal or par of the stock.” Pursuant to which, the trustee received $25,000 in cash.

On March 27, 1893, the directors resolved,

“ That a division be made to the stockholders of the following assets in kind:

Seventy-five per cent, in stock of Nashville, Chattanooga & St. Louis Railway Co.

Sixty per cent, in stock, Louisville & Nashville R. R. Co.

Forty per cent, in stock, Illinois R. R.’s leased lines.”

All of which the trustee in due course of time received.

At eight other times, from April 3d, 1893, to November 13th, of the same year, the directors of the Rogers Locomotive & Machine Works adopted the following resolution:

“Resolved, That a further dividend or division of the assets in liquidation be made of 100 per cent, in cash and 144 1-12th per cent, in stock of Rogers Locomotive Co.” Pursuant to which the trustee received $16,700 in cash, and 240i shares in stock of Rogers Locomotive Company.

All the payments, dividends and divisions made to the stockholders since February 15th, 1893, were indorsed on the certificates of 256 shares of stock in the Rogers Locomotive & Machine Works.

It having become very evident that the cash and securities received by the trustee, and by it held for the purposes of the general trust, were far in excess of what was necessary to raise the annuity of $5,000 for the widow, the trustee filed a bill for instructions as to the distribution of such excess.

On the 2d day of December, A. D. 1893, the court, by consent of the solicitors for the complainant and defendants, and without prejudice to either party as to the further questions arising under the pleadings reserved for future argument, ordered,

First. That $25,000' in cash, and $125,000 in specified securities, should he held by the trustee out of the funds in its possession for the raising and securing an annuity of $5,000, payable under the will of Theodore B. Rogers, to his widow during her life or widowhood.

Second. That one-third of the residue of the undivided assets, held by the complainant as trustee, be paid over and transferred to the son of the testator absolutely, under the express terms of the will, and that the excess of income arising from the money and securities so ordered to be held by said complainant for the purpose of raising said widow’s annuity, above said annuity, and all expenses attending the execution of said part of said trust, shall be paid over by said trustee as income, in equal shares, to Annie R. du Pont, Theodore B. Rogers and Helen R. Bradford, said testator’s children.

One of the questions reserved is, are the two daughters of the testator entitled to have paid to them their respective shares of all excess of income received in ordinary cash dividends, above the annuity of $5,000, arising from the fund set apart and held by the original trustees to raise said annuity prior to the order of this court, December the 2d, 1893, or is it to be held as a part of the principal or corpus of their respective trust estates?

To determine this question, it is proper to consider, in the first place, from what period the children of the testator were entitled to a definite share of the income produced by the corpus of the trust estate, under the language in which the trust is expressed. It must be borne in mind that the whole estate of the testator, except certain realty and personalty given in trust for the special use and benefit of the widow and son, and the amount necessary to raise the widow’s annuity, was to be held in bulk until the eldest child attained the age of twenty-one years. The income was also to be held in like manner for a like period, subject to the payment thereout of so much thereof as the trustees might deem proper for the support and education of testator’s wife and children, or the legal issue of any deceased child or children.

The eldest child, Mrs. du Pont, completed her twenty-first year, May the 4th, 1879, at which time the residuary estate was to be divided into as many shares or parts as there might be children, and deceased children leaving lawful issue at the time of the division, and thereafter the income earned by each of those shares was to be held by the trustees separately, and not thrown into a common fund.

The testator had only three children, all of whom were living at the time the division was to have been made, thus making the fund divisible into three equal parts or shares.

It is immaterial, however, • for the determination of this cause whether the whole of the residuary estate was so divided at the period prescribed by the will or not, inasmuch as it comes within the principle, that whatever ought to be done is considered in equity as done. And for the sake of convenience, it may be stated here, that the residuary estate was the whole estate, diminished by the separation therefrom of the portion devised to the widow and son, and so much only as would bo necessary to produce the Avidow’s annuity. I shall, therefore, throughout this opinion, treat the excess of capital held by the trustees for the use of the widow during her life or Avidowhood as a part of the residuary estate, as further on it is more elaborately noticed.

By the admissions and exhibits in this cause, it appears that the income thus held in bulk exceeded the expenditures in behalf of the support and education of the children. Consequently, betAveen the death of the testator (which occurred in October, 1871) and the period for division, the annual excesses of income aggregated a large amount. What that amount now is, however, is not important to consider, as we are endeavoring only to discover the principle by which to determine its quality; Avhether capital or income.

The testator evidently contemplated the existence of an unexpended income, in the hands of the trustee, every year after they assumed the responsibility of administering and executing the several trusts imposed upon them; but notAvithstanding this, he gave no direction to distribute this excess as income among the chosen objects of his care and bounty, either before or after the dÍAÚsion. Neither were the trustees required to keep it as a separate and distinct fund for any general or particular purpose, as none was indicated or expressed in any clause or part of the will. What object, then, could there have been in continuing to treat it as income? None whatever, for the children were amply provided for up to the period fixed for the division. If the testator had survived their minority, he could not have made a more wise and judicious provision for them than he did do by his will. If he had died intestate, the law would have made the same, certainly no better provision. In such case, their guardians would have been permitted to use only so much of the income as would have been proper for their support and education. So that, the testamentary provision made was not incompatible either with the tender and generous instincts of the parent, or the humane provisions of the law.

This excess of income, therefore, being unrestrained by any express or implied direction of the testator, obeyed the law or tendency of its nature and fell into and became a part of the parent or general estate, in which its identity as income was completely lost.

If the view I have taken needed reinforcement, it would only be necessary to refer to the language employed by the testator to describe the whole of his property devised and bequeathed in trust to his executors, for the various purposes subsequently named in his will, and the language employed by him to describe his residuary estate which he directed to be divided as before mentioned. His entire estate, in the clause creating the general trust, is comprehended under the phrase “ all my estate, real, personal and mixed, whether in the State of Delaware or elsewhere, now in possession or hereafter1 to be acquired.” His residuary estate is defined as, “my whole estate,” except that portion thereof devised in the first section of his will, for the use of his wife and son, and except, further, such principal or capital sum as may be sufficient to produce the widow’s annuity. There is no dispute that the words “ all my estate,” as used in the one case, included income as well as capital. If so, upon what ground can the words “ my whole estate,” as used in the other case, be held to be exclusive of income? — the only difference being in the words “ all ” and “ whole.” They are both descriptive of the word “ estate,” and are equally broad and comprehensive in their import. Any attempt to draw distinction between their natural scope and effect would be a labor devoid of any discoverable aim or end, unless their ordinary signification is modified or varied by other language in the will. As before seen, there is no language in the whole will to so separate the capital from the income, as to require a special mention of both by their technical names, in order to combine or consolidate them into one fund, namely, the residuary estate.

Again, at the time of the execution of his will, the estate of the testator, no doubt, consisted of both capital and income, the respective of which identities were just as capable of ascertainment at that time as at any time after his decease. He used the term “ estate ” intelligently, intending to embrace therein all his property in whatever form it may have existed, without specifically mentioning the classes and subdivisions of which it was composed, barring the well-known legal distinction between real and personal property. The testator must have known that if an ordinary degree of prosperity continued to attend his business affairs, his estate in the hands of the trustees would, when the period fixed for the division thereof should arrive, consist of both capital and income, just as his entire estate did at the time of the making of his will, whether in the same or in dissimilar, proportions. Therefore, if he had intended to restrict the application of the term “ estate,” as used in directing the division of his residuary estate, to capital .alone, or to any particular portion of his property, the unavoidable presumption is that he would have used appropriate language to accomplish that purpose, without leaving the executors or trustees to grope their way amid the subtleties and refinements of the law to discover some hypothetical testamentary intention. Had he had such an intention as imputed to him by the solicitors for the respondents, he would naturally (having fixed the meaning of the word “ estate ” by the broad sense in which he first used it), have limited it by such restrictive words as “ my whole estate, exclusive of accumulations down to date of division then directed.”

But the solicitors for the respondents attempt to meet this view by insisting that the corpus or capital of the .estate must be ascertained as of the date of the death of the testator, or, at the furthest, one year thereafter. In other words, the residuary estate at the present period of division, in contemplation of the testator, was no more than the corpus of the entire estate thus ascertained, less the portions excepted therefrom as before mentioned.

In the argument, it was assumed that this contention was sustained by several cases cited under appropriate heads in the respondent’s brief. But a careful examination of the facts in those cases forces the mind to the conclusion that the case in hand clearly falls without the rule of construction laid down and approved in those cited. This case and those cited differ in their essential facts. The latter, in each instance, grew out of a gift or bequest of a certain fund in trust to pay the income arising therefrom to' certain persons during their lives absolutely, and at the expiration thereof, to pay the corpus to certain other persons in the same manner. The payment of the income was made just as absolute-as the payment of the principal. In none of these cases, however, was a definite time prescribed by the testator when the income should begin to accrue or the payment thereof to be made. The courts were, therefore, invoked to fix such time, and in doing so, fixed it, in some instances, at the death of the testator, and, in others, one year thereafter •—• the period generally allowed for the settlement of estates. The former would seem to be more in harmony with the true intent of the testator than the latter, since it puts into immediate effect the testamentary intention.. This rule of construction is certainly a very wise and beneficent one, as it tends, under certain conditions, to prevent a partial abortion of the testator’s intent, yet it must not be stretched so far as to destroy the very purpose it was intended to serve. In the present case, the testator did fix the time (and this in the most definite manner possible) at which the income should be payable to his children, namely, as they respectively arrived at their majorities, but he did more than this; he did not leave his children uncared for during their minority, but, on the contrary, made ample specific provision for them during that period. In the light of the parental care manifested by the testator, and the definiteness of the language used, where is the reason for the application of such a principle or rule of construction? What is the ground for a just and equitable collision between the interests of the life beneficiaries and the remaindermen, as measured and determined by the express language of the testator, which calls for the interference of this court?

The next question to be determined is, whether Mrs. Bradford, on her arrival at full age, was entitled to receive the unexpended income which had accrued on her share of the residuary estate from the period of division, that is to say, the income arising from the one equal third part of the entire residuary estate, including the amount over and above that which was actually necessary to raise the widow’s annuity.

The testator, in item 4 of his will, among other things, directs that the trustees shall, as his daughters respectively arrive at twenty-one years of age, pay' over to them respectively the income of their respective shares of his estate. This is the first time that he directs anything to be paid to his daughters directly. . He does not say whether it is income to accrue, or income which has accrued. The direction is broad enough to cover both. It is true that in item 7 of his will, the testator declares that his said executors shall stand possessed of the accumulations of his entire estate and the income thereof for the trusts therein mentioned. The accumulations here referred to, however, relate to the entire period covered by the lives of the life beneficiaries, but the accumulations or income which we are now considering, relate to a particular part only of that entire period, and to a particular portion of the income. We are, therefore, presented with a case where two intentions appear upon the face of the will; not, however, in material conflict with each other, but the one, a general intent for a general period, and the other, a particular intent for a particular period, and a particular portion of the estate. In such a case, it is manifestly proper to treat the latter, or particular intent, as an exception to the former, or general intent. ■ This question at least involves such a doubt as should be resolved in favor of the life beneficiary, Mrs. Bradford. I, therefore, direct that such unexpended income shall be paid to Mrs. Bradford out of the general funds in the hands of the trustee.

The remaining question is, whether the various sums of money and securities received by the trustee upon the shares of stock of the Rogers Locomotive & Machine Works should be held by it as part of the principal or part of the income of the trust fund.

Thus far, I have not invoked the accumulation clause in aid of the interpretation or construction of the will. It is certain, however, that the testator must have intended it for some purpose, but, unless it is held to be applicable in determining how this large bulk of property remaining in the hands of the trustees shall be disposed of, it would seem that item 7 was idly inserted in the will. To give such an interpretation as would make this section a nullity, would be to violate the fundamental rule of construction, which holds as sacred the full intention of the testator. I am bound, therefore, to treat this provision as of vital force in controlling the distribution of this fund. Accordingly, it remains now to discover the meaning of item 7 of the will. The controlling idea of the testator in the disposition of his property, so far as his two daughters are concerned (after making ample provision for their support and education during minority), was to restrict them to the enjoyment of the income arising from their shares of his residuary estate and its accumulations.

He did not leave this intention to the surmise or conjecture of courts, but expressed it in such clear and explicit language as to leave no room for substantial doubt or controversy. It would be difficult to discover words more clearly indicative of such intent than those which he used in this very section itself. They are as follows: “ hereby declare that my said executors shall stand possessed of the accumulations of my residuary estate and the income thereof upon and for the same trusts,” etc.

Referring to the 250 shares of stock in the Rogers Locomotive & Machine Works, what are we to understand by the word “ accumulations? ” What does it embrace? Are not accumulations the yearly earnings and profits of a corporation, in whatever form they may exist, which had not been distributed in dividends among the owners of the stock at the time it went into liquidation? If they are not, it would be impossible to assign a definite meaning to such a term, or to draw the line of distinction between income and accumulations. It is very unreasonable to suppose that the testator, when he used this language, had in mind the period of one year allowed by law for the settlement of estates. To have limited this language to that time would have required express words showing such an intent.

The testator did not leave it to the actions of the executors, to determine what should be embraced in this term, for, by declaring that his executors shall stand possessed of the accumulations, etc., he expressly shows that he designed to include accumulations which were in the sole custody and control of the corporation as they accrued.

It would be purely a work of supererogation to review the authorities cited as to the meanings of the terms “ accumulations ” and “ income,” for the reason that the testator has in his own language practically defined them himself in the sense in which he intends to use them. It is hardly necessary to add, that a different interpretation, or such an one as insisted, upon by the solicitors for the respondents, would have the effect of giving to his daughters absolutely the greater part of his estate, when from the whole context of the will it is manifest that he designed them to be life beneficiaries merely, taking nothing in derogation of the remainder-men.

But it is contended by the solicitors for the respond■ents, that the appraised value of the stock set apart by the trustees as the fund out of which to raise the widow’s annuity, is -the basis by which to fix the residuary estate, so far as that stock is concerned, and that the whole of the amount by which its real value overtops its appraised value, must be taken as income belonging to the daughters. To hold to such a contention would.be to make the rights of life beneficiaries and remainder-men alike dependent upon the action of the appraisers, perhaps upon their whim or caprice. These rights are, however, fixed by the will itself. It is to that instrument that we must turn in defining the rights and the interests of the beneficiaries.

. It is also contended by the solicitors for the respondents, that 250 shares of stock in the Rogers Locomotive & Machine Works, does not constitute any part of the testator’s residuary estate, as the trustees retained, the same in specie down to the present time, as a part of the principal or capital, to raise the widow’s annuity.

This stock, according to their contention, is expressly excluded from the residuary estate, because the testator himself declared that his residuary estate should be the whole of his estate, except the portion thereof devised for the special use of his widow and son, and the amount set apart by the trustees sufficient to raise her annuity. This contention must also fail, because the trustees were only authorized to set apart a sufficient amount to raise the annuity of $5,000. They had no power to set apart another dollar than that sufficient for this purpose. To concede that they had the power under the will to set apart a greater sum than that, would be equivalent to giving them the power to reduce the residuary estate to such a nominal sum as would not produce sufficient income for the support and education of the children during minority, and in fact to thwart the clear intention of the testator. Therefore, the residuary estate must be the whole of the testator’s estate, less the portion devised for the use of the widow and son in the first item of the will, and only such an amount of the capital as would be sufficient to raise the widow’s annuity, and it was this which was divided, in the contemplation of the testator, at the period fixed for the division. Therefore, all the divisions of cash and securities in the treasury of the Rogers Locomotive & Machine Works, by whatsoever name called, that have been paid or delivered to the present trustee since February 15, 1893, or may hereafter be paid or delivered, must be treated as capital and not income.