25 N.J. Eq. 351 | New York Court of Chancery | 1874
William Gartlnvaite, late of Newark, deceased, by his will and the codicil thereto, gave to his executors and the survivors and survivor of them, certain shares of the residue of his estate, in trust, to hold the same, as to four of them, for four of his sons therein named, one share to each, during their several and respective lives, and after deducting costs, charges, taxes, repairs, commissions, expenses, and insurance, to pay over to those sons, quarterly, in equal shares, the net income thereof. And he thereby authorized his executors and the survivors and survivor of them, at any time he or they should deem it wise, prudent, and expedient to do so, to pay over to “either of” his said four sons “the equal principal share of said trust fund to which he may be entitled.” The testator further ordered that in case any of his said four sons “should die leaving issue, without receiving their equal principal share of said trust fund,” his executors or the survivors or survivor of them should pay over such principal
The question is submitted, whether these shares are vested in the sons so as to be transmissible in case of the decease of 'the sons without having received them. The testator gives the net income of the shares to the sons, absolutely, but not the principal. He disposes of the latter in case the sons die without having received it, leaving issue. The fact that he makes the payment of the principal to the sons entirely dis-' cretiouary with the executors, forbids a construction which would hold the shares to be vested in the sons. Lewis v. Lewis, 1 Cox 162; Robinson v. Cleator, 15 Ves. 526; Gompertz v. Gompertz, 2 Phil. 107; Scawin v. Watson, 11 Jur. 293; S. C. affirmed, Id. 576. The gift of the principal is not an absolute gift modified by subsequent restrictions, so that the absolute gift would have its full effect so far as the restrictions were not applicable; but it is a restricted and limited gift — a gift to the sons of the net income for life, and of the principal, provided, and only provided, the executors or the survivors or survivor of them deem it “ wise, prudent^ and expedient” to pay it to them. The fact that the testator directed, that in case any of the sons should die without leaving issue, and leaving a widow, the net income of his share should, at the discretion of the executors or the survivors or survivor of them, be paid to her during her widowhood, is evidence that he did not intend to give the principal .of the shares absolutely to the sons, and consequently, that the principal, if not paid to them, should not vest in them.
The further question is raised in this case, whether, if these shares be not vested in the sons, the principal, in case
