Thе terms of the will are: “ I give the improvement of the balance of my property in trust to ” a trustee named, “ thе income to be paid equally to my brother ” “ and my sister” “ during their natural lives, and at their death the principal I give to my nephews and nieces then surviving.” The brother having deceased, the nephews and nieces claim thаt the estate should be divided, and one half now distributed. They contend that the direction that the income be paid equally to the brother and sister has a distributive effect upon the whole clause, and operates to transmit the property in halves ; that upon the death of either of the beneficiaries for life the trust is functus officio аs to half of the trust fund, and therefore the principal of that half becomes at once distributable to the legatees in remainder.
The word “ equally ” has no direct application except to the mode of paying over the income after it is received by the trustee. The language of the clause indicates that the balance of the property is to constitute one fund, the income or “ improvement” of which is tо be received by the trustee during the lives of the brother and sister; after which the principal is given as
In the present case there is no such ground of interpretation. There is but a single class to take the whole remainder, and they per capita, not as representatives of the brother and sister. The gift to them has no reference to their relations to the brother and sister, but only to their relations to the testatrix. Thе apparent intent therefore seems to us to accord best with the natural interpretation of thе words, making the gift over in remainder take effect only upon the termination of the trust by the decease оf both brother and sister. The agreed fact, that none of the nephews or nieces are children of either of the beneficiaries for .ife, tends to confirm this interpretation as in accordance with the probable intent of the testatrix.
Another question arises in the case from the fact that there is no gift over оf income upon- the death of one only of those to whom it is payable for life. This is relied upon, on thе one side, as favoring the construction which would give the principal of one half of the fund to nephеws and nieces at once; whi e, on the other, it is claimed that the whole income is payable to the survivor. The provision that the income is “to be paid equally ” to the brother and sister does not necessаrily imply a
If the direction “ to be paid equally” were to be construed to apply strictly to each payment of income, it would render the trust impossible of execution after thе death of one of the cestos que trust. Payment to the survivor exclusively of any part of the income, or thе income of any part of the trust fund, would be as repugnant to such a direction as payment of the whole. Such a construction would limit the trust to the joint lives of the brother and sister.
The construction contended for sеems to be, that the right to one half of the income, as a fixed, definite right, became vested in each, fоr their respective lives; and that this right cannot be enlarged in the survivor by the death of the other. This constructiоn not only puts a constrained and narrow interpretation upon the words used, but, as has been already indicated, does not accord with the general purport of the clause and the apparent intеnt of the testatrix in the ultimate disposition of the fund.
There being no other party to claim an interest in the income, as income, and no apparent intent that the principal should be broken, or the trust in any part tеrminated, until the death of both of the beneficiaries for life, it seems to follow that the entire income should be paid to the survivor. Begley v. Cook, 3 Drew. 662. Pearce v. Edmeades, 3 Y. & Col. Exch. 246.
Instructions accordingly.