25 N.J. Eq. 324 | New York Court of Chancery | 1874
The bill is filed by the executors of the last will and testament of William Gulick, deceased, late of Princeton, in this state, for the construction of a bequest of $10,000 therein, in favor of his daughter, Abby Maria. The will is dated July 13tli, 1855. By it, the testator gave to his son James, $2000, to be placed out at interest on bond and mortgage; the bonds and mortgages to be taken in the names of his executors, and the interest to be paid annually to James by the executors, ■for his sole and separate use, and to be in no wise liable for
Abby Maria did not marry. She died on or about the 20th of May, 1873, leaving a will by which, after providing ibr the payment of her debts and funeral expenses, and the erection of a tombstone over her grave, she gave all her property to the children of her sister Elizabeth. Her executor claims the §10,000 mentioned in the above quoted section of the will. On the other hand, it is claimed that it passed under the will of William Gulick, deceased, to those who are now interested in the residuum of his estate; or, if not, then to his next of kin. The executor of Abby Maria insists that, subject to the qualifying trust and conditional limitation, she took the gift of $10,000, absolutely. On the other hand, it is insisted that she took only the interest of it for life.
The testator gave to Abby, by the bequest under consideration, §10,000, to he held by his executors or the survivor of them, in trust for her, and the interest to be paid annually her by the executors or the survivor of them, for her sole and separate use, and not to be liable for the debts, or subject to the control, of any husband she might have; and he further provided that, if she should marry, and have a child or children, then, after her death, the $10,000 were to go to
The plan of his will manifestly was to give his children ■equal shares of his estate. All the rest of his children except Abby, were married, and had children living when the will was made. In the case of each of the others, he gives to the parent or parents the use or interest for life, and at his, her, or their death, the fund or the real estate to his, her, or their children. There is no clause of accruer in any instance, and he makes no provision in regard to the fund or property, in case neither the children nor their issue should survive the parent to whom the interest or use for life is given. Abby has no interest under the will in the particular devises and bequests to her brothers and sisters and their children. Equality, therefore, does not require that they should have any in the bequest to her. It is clear from the language of the bequest under consideration, that the testator intended to give the $10,000 to Abby, settling it on her to protect it against any husband she might have, and securing it, in case she should marry and have issue, to her child or children. Where there is a gift to children or other legatees, the shares being given absolutely in the first instance, followed by a direction to settle the shares upon trusts which do not exhaust the whole interest, the legatees take their share absolutely, subject to the qualifying trusts. And where the testator provides that the portion of his daughters shall be held in trust by his executors or other persons appointed for the purpose, during the life of his daughters, and go to their
The testator evidently did not intend to die intestate of the money mentioned in this bequest, and it is difficult to conceive why, if his intention had been that Abby should have a life interest only, he did not, when dealing with the fund, in view of the contingency alluded to and with the possibility if not the probability before him that she would not have issue, give direction to the fund at her death, in the event of her dying without issue. The probability that she would not marry, and that if she did, she would not have issue, seeing that she was, at the date of the will, well advanced in life, must have presented itself to him.
There will be a decree that the fund be paid over, with its accumulations, to the executor of Abby.
The costs in this case should be paid'out of the legacy of Abby Maria. The estate of the testator, William Gulick, has been long since settled, and the legacies have either been paid over or are held in trust, according to the directions of the will, and the shares in the residuum have been dealt with in like mann er. Though the costs of this suit may be re