149 Minn. 276 | Minn. | 1921
“5. It is also my wish and will that at any time 'after my property has been converted info income-bearing securities, sufficient to insure the payment of the above monthly and semi-annual payments therein provided for, on a basis of five per cent annual interest, my trustees shall, out of the residue of my estate, pay to Edward C. Liedel, my friend and former partner, of Duluth, Minnesota, the sum of ten thousand dollars ($10,000.00) or such part thereof as máy be available after providing for the monthly and the semi-annual payments as above specified.”
“6. It 'is further my will that after the payment of the amounts above specified, and provided for, that out of the residue of my estate, if so much remain, there be paid to Bates College, of Lewiston, Maine, the sum of ten thousand dollars ($10,000.00).”
“My said wife to have the right to dispose by will of one-third of any residue that may remain after making all the above mentioned payments; the other two-thirds of the residue that may remain after making such payments above specified, I give, devise and bequeath to the heirs of my deceased brother, Albion L. Douglas, residing in the State of Maine, or their heirs and legal representatives.”
We have made two paragraphs of section 6. In the will as executed there was but one.
The probate court, and, on appeal, the district court, held that the legacy to Liedel could be paid only in the event tfiaf a balance remained after taking out the $3,000 and an amount which, on the basis
The legatee contends it was the intention of the testator that, even though there should not be sufficient in the trust fund to produce the annuities, to pay the $3,000, and to pay the legacy, still, any part of the legacy remaining unpaid should be paid out of the estate to be distributed after the expiration of the trusts. This would result in ultimate payment of the Liedel legacy, for the amount required to produce the annuities is not constant and will diminish and finally reduce to nothing as the beneficiaries one after another die. The legatee contends that as such contingencies happen, the legacy shall be paid out of the funds so released.
We agree with the construction adopted by the probate and district courts. Taking all the provisions of the will into account, this seems to us to have been the intention of the testator.
It is urged that this construction attaches a different meaning to the word “residue” in section 5 from that given to the same word in section 6. This is true, but we think it plain that the testator intended a different meaning in the two cases. The similar word “balance” is used in a still different sense in section 3.
This is not strictly a specific legacy. It is a general gift out of a certain residue on condition that such residue exists. It is not in our opinion a demonstrative legacy. We find nothing to evince an inten
Judgment affirmed.