58 N.C. 82 | N.C. | 1859
The bill is filed by the plaintiff as the executor of the will of William Hogan, praying a construction of certain clauses thereof and for advice as to the manner of carrying the same into effect. The clauses of the said will out of which the questions arise are as follows:
"First. I will and desire that all my just debts shall be paid, and that my estate shall remain in the hands and under the management of my beloved wife, Elizabeth Hogan, and my two sons, John A. Hogan and Alexander W. Hogan, until my youngest child arrive at the age of 18 years, except such legacies as are hereinafter named.
"Secondly. I give and bequeath to each of my children, namely, John A. Hogan, William L. Hogan, Franklin H. Hogan, Elizabeth J. Stone, Alexander W. Hogan, Pleasant H. Hogan, Louisa Holt, Claudia Hogan, Frances Hogan, Eugenia Hogan, and Julia Hogan, the sum of $3,000 each, and to my grandsons, William Jones, Nathaniel Jones, and John Jones, $1,000 each, which legacies are to be paid in money and property at its valuation and moneys which may be raised from the products *79 of my farms, out of which legacies are to be deducted the advancements I have already made to some of my children, which advancements are hereunto annexed and signed with my signature.
"Thirdly. I give and bequeath to my beloved wife, Elizabeth Hogan, the use of the manor plantation and land adjoining during her life, and one-half of all my personal estate that may be left after paying the above named legacies, and one-fifth part of all the marketable produce that may be raised on my mill plantation during her life, with the privilege of disposing of the same by will or otherwise amongst our children at her death.
"Fourthly. I will and direct that my son, Alexander W. Hogan, shall be supported out of my estate until he gets his profession, and afterwards, on the general division of my estate amongst my children, my sons John, William, and Alexander shall be charged each (84) with the sum of $1,000, to be deducted from each of their parts in said distribution.
"Fifthly. I also will and direct that my son Pleasant shall have the charge of my mill, and exercise the business at that farm as long as he and my executors herein named can agree, for which he shall have a decent support and the sum of $250, to be paid him annually by my executors. . . .
"Sixthly. I further will and direct that the aforesaid legacies of $1,000 each which I have willed to my grandsons William, Nathaniel, and John Jones shall be paid to them in negroes or land, or both, at the discretion of my executors, when they arrive at the age of 21 years."
In a paper referred to by the will as containing a list of advancements, the testator mentions that the sum of $1,200 advanced to his daughter Mary Jones was not to be deducted from the legacies to her three sons (William, Nathaniel, and John) "as they are not to have any more of my estate than $1,000 each."
Mrs. Hogan and her two sons, John and Alexander, were appointed executors, but the two latter having died she continued solely to manage the affairs of the estate for several years preceding her death, during which time she accumulated from the use of her life interest and the other sources provided in the will an estate of considerable value. She died in 1856 having made a will appointing the plaintiff W. R. Holt her executor, by which he became executor, also, of William Hogan's will. All the debts were paid off before her death, as also were the special legacies, with the exception of a part of that to Nathaniel Jones and the legacy of $1,000 to John Jones, who died before he reached the age of 21 years. The will of Mrs. Hogan, in its tenth clause, is as follows: "The residue of my property I will and desire to be sold by my executor, and the proceeds to be applied first to the payment of my *80 (85) aforesaid legacies, and the balance to be divided between Elizabeth J. Davis, Louisa A. Holt, Eugenia A. Minniss, the two children of A. W. Hogan, deceased, to wit, William G. Hogan and Jesse H. Hogan, and Pleasant Hogan, as follows, to wit: My son Pleasant H. Hogan, according to the compromise before alluded to between us, and to go into the hands of a trustee as above provided; to my daughters Elizabeth J. Davis, Eugenia A. Minniss, and Louisa A. Holt one share each, and to A. W. Hogan's children one share, they to represent their father."
Under the will of Colonel Hogan, especially the fifth clause as above stated, his son Pleasant claimed against his mother a large sum for support and his yearly salary in superintending the business of the mill and mill farm, which is charged on her interest, and was about to file a bill in equity for the same, but at the instance of mutual friends the dispute was compromised in writing and signed by each. In that compromise it is provided that Mrs. Hogan, "in making a division of her husband's estate, at her death shall allow to the said Pleasant twice as much as any other child." This is the compromise alluded to in Mrs. Hogan's will.
The primary question submitted by the plaintiff is whether the above will of Mrs. Hogan is a valid and effectual execution of the power contained in her husband's will, and if not, who are entitled, on the falling in of the estate, to the property left to Mrs. Hogan to be divided by her.
John Jones, one of the children of Mary, deceased, died several years before he arrived at 21; and another question submitted is, whether his share lapsed or whether it became payable to his administrator, and, if payable at all, whether it bears interest, and from what time, and whether, in the latter event, it may still be paid in property.
Alexander W. Hogan voluntarily declined studying a profession, and his support was no charge on the estate on that account. His administrator contends that the charge of $1,000 on his share made in his father's will on the supposition of his studying a profession ought not to stand against him in the settlement of the estate, and the executor asks advice also on this point.
(86) By another clause of the will of Mrs. Hogan she provides as follows:
"Seventh. I will and direct that the legacy, or the part of it unpaid, given by the will of my late husband, William Hogan, of which I am executrix, to Nathaniel Jones, my grandson, be paid out of lands in Alabama belonging to the estate of my deceased husband, and the balance, if any, after deducting advancements made, out of any estate I may have coming to me from the estate of my deceased son, Franklin *81 H. Hogan, and if I get nothing from his estate, or not sufficient, then out of any estate I may leave behind me."
Nathaniel Jones has been of age for several years, and in his answer insists that the executor of William Hogan is bound to pay him his legacy out of the estate, and that he is not bound to look to the uncertain provision attempted to be made in the will of his grandmother. Upon this point, also, the executor asks the advice of the court.
All the surviving children of William Hogan and the representatives of such as have died are made parties, also the administrator of John Jones, and they all answered, but their answers do not vary the statement as herein above set forth. 1. Under the third clause of the will of William Hogan, Mrs. Hogan took a life estate in the land and personal estate therein mentioned, with a power of appointment among the children at her death, but in the profits of this property and one-fifth of the produce of the mill plantation during her life she took an absolute interest, and was entitled to such portion thereof as she did not find it necessary to expend, and these "savings" pass under her will.
But her will is not an effectual exercise of the power of appointment. It does not refer to the power or purport to act under it. Nor does it mention specifically any of the property willed to her by (87) Colonel Hogan, but professes simply to dispose of her own estate, so that it may well be doubted whether, in this point of view, it could have effect as an exercise of the power. But if we suppose the reference made to the compromise between herself and her son Pleasant Hogan is sufficient to connect her will with the power, so as to show an intent thereby to exercise it, another difficulty is presented which we consider fatal. The compromise shows that, in order to relieve herself from a liability to Pleasant, which he was about to enforce by suit, she agreed so to exercise the power as to give him a double share; and in pursuance of that agreement, she does give him a double share. It is settled that a person having a power of appointment for the benefit of others is not at liberty to use it for his own benefit; and if he does so, it makes the exercise of the power entirely inoperative. Thus, if a parent has a power of appointment to such of his children as he may choose, he cannot appoint it to one of the children upon a bargain beforehand for his own benefit. Adams Eq., 185. The grounds upon which this doctrine is based are too obvious to require comment, and its application to the case under consideration is manifest. *82
The power not having been duly exercised, and there being no limitation over, in default of appointment, the question arises, who is entitled to this property upon the falling in of the life estate? There is no general residuary clause in the will of Colonel Hogan. In the seventh clause he directs the residue of his estate, both real and personal, to be equally divided amongst his children by his executors when the youngest child shall arrive at the age of 18 years, and thus by necessary implication excludes the property which he had given his wife for life, with a power of appointment by her among his children, for there is no connection between the time of his wife's death and the time when the youngest child should arrive at the age of 18. One might happen long before or after the other, consequently the property given to his wife cannot be included in that which he directs should be divided (88) by his executors, and being undisposed of by his will passed to his distributees under the statute of distributions, the legal effect being that, by the will, Mrs. Hogan took a life estate, and the reversionary interest passed by act of law to the distributees, subject to be divested by the exercise of the power of appointment. It follows that Mrs. Hogan was entitled to a distributive share of this undisposed of fund, for the life estate given to her by the will does not exclude her from claiming her part of what is not embraced by the will. This interest and her "savings" from the profits of her life estate, and any other estate she may have owned, pass under her will. So it also follows that the three children of Mrs. Jones, a deceased daughter, are entitled to a share of this fund, for the words of exclusion, as to them, only have the effect of preventing any further claim by them under the will and do not embrace an interest as to which he died intestate. Dunlap v. Ingram,
2. The legacies of the sum of $1,000 to each of the three children of Mrs. Jones were vested, although not to be paid, until they respectively arrived at the age of 21 years; consequently, the administrator of John Jones is entitled to his legacy, but he is not entitled to interest except from the time when he would have arrived at age. His dying before that time does not entitle his representative to claim the money or interest on it sooner than he would have been entitled had he lived. There will be a decree against the executor for these legacies and interest, to be paid in money, for the discretion of the executor to pay in land or negroes ought to have been exercised at the time the legacies were payable, and the arrangements which Mrs. Hogan attempts to make in her will has no legal effect.
3. As Alexander Hogan, of his own accord, declined to study a profession, we can see no ground upon which he can take advantage of his own fault, or rather, his own pleasure, in order to free himself from a *83 charge which the testator annexed to his share of the estate. The cases cited by Mr. Miller do not support the position taken by him. If a legacy of $1,000 be given to one to be paid when he arrives at (89) age, and the interest is directed to be applied to his education, he is entitled to the interest, although he becomes a lunatic, because it was a direct gift to him with a mere direction as to its application, So if $100 is given for the nurture of A., and also $100 to bind him apprentice, and the executor neglects to bind him, A. is entitled to the $100 which ought to have been applied to putting him out as an apprentice, for it was the fault of the executor and not that of A. that he was not bound apprentice. Barton v. Cooke, 5 Ves., 461, which distinguishes from our case. Besides, there is not here any gift to Alexander, but only a direction that he shall be supported out of the estate until he gets his profession, with a charge of $1,000 upon his share and that of John and William. So the charge is positive, and the provision for his support was of course left for his election, and because he chose to disappoint the expectation of the testator by not studying a profession, non constat, that he thereby relieved himself of the charge. There must be a decree and reference conforming to this opinion.
PER CURIAM. Decree accordingly.
