83 N.J. Eq. 428 | New York Court of Chancery | 1914
This bill is filed by Edward J. Moore, the surviving trustee under the will of Thomas C. Barr, for a construction of Iris will on three contested points. The first is a question arising on the claim of the executors of the widow of the testator for the payment to them of certain income of the estate, amounting to $2,-760.76, now in the hands of the trustee, and being a portion of the income of the residue of the estate which was given and devised to the executors and trustees by the eleventh clause of his will, upon trusts therein specified. The first trust (as to payments) was as follows:
“First. I direct that my said executors or trustees pay to my beloved wife Loraine H. Barr annually in quarterly payments, during her natural life, an amount equal to one-half the net income accruing from my said estate.”
The testator died February 26th, 1908, and during the lifetime of the widow payments to her under this clause were made quarterly on the 28th days of February, May, August and November of each year. The last payment to her was made on February 28th, 1913, and she died on May 21st, 1913. If the income is apportion able, then the sum of $2,760.76 is the proportion of the quarterly payment to which the widow at the time of her death would have been entitled out of the entire income up to the quarter ending on the 28th of May, 1913. Her executors
Treating this devise and bequest to the wife not as the income payable at fixed times, her executors are, however, under the general rule well settled, entitled to such an apportionment of the income as will give to the widow the benefit of so much of the income as accrued from day to day during her ife. Brombacher v. Berking (Vice-Chancellor Reed, 1897), 56 N. J. Eq. 251, 255. This would include interest accruing on mortgages and also dividends declared during her lifetime, although not payable until after her death. The ease does not show what the apportionment would be on this basis, and this may be the subject of further inquiry, if necessary.
The second and third questions are connected and involve the general question whether the entire principal trust estate or fund in the hands of the surviving trustee must be held intact for the purpose of paving the income of the entire estate (after certain deductions) to the two sisters of the testator during their joint lives, or whether, after the death of the widow, who was entitled to one-half of the net income during her life, one-half of the principal of the estate becomes immediately divisible among the persons entitled as residuary legatees to the estate, and whether, therefore, the sisters of testator ,are entitled to require only one-
The sisters are also the residuary legatees to the extent of one-third each of the entire fund not otherwise disposed of, but they claim that no portion of the principal is yet divisible. The residuary legatees of the trust fund other1 than the sisters, being a nephew and nieces of the testator and a niece of his wife, and who are each entitled to one-ninth of the residue, claim that the sisters are entitled only.,to the income of one-half of the principal fund (less the special deductions), and that after the death of the wife, one-half of the principal became immediately divisible among the residuary legatees. These two questions, the right of the sisters to the income of the entire fund, and the right to distribute any portion of the principal, are thus inseparably connected, and decision upon one point affects the disposition of the other. The difficulty in reference to the construction of the will on these question — for there is a difficulty — arises from the fact that the will is not only inartificially drawn, but in reference to the particular point now in question, it is drawn confusedly, as will appear from a recitation of its provisions.
The will, after a direction for payment of debts and funeral expenses, and for the payment of specific legacies (all of which amounted to about $50,000), gave and devised the entire residue of his estate to his executors and trustees, in trust for the uses thereafter named. This residuary clause vested in the executors the legal estate in the entire residue, leaving, however, the equitable or beneficial estate therein to be further declared. Directing that the trustees invest and keep the estate invested and collect the rents and profits therefrom, pay all taxes or other charges, the testator then directed that they pay over the balance
The fourteenth paragraph reads: “I further direct that out of the remaining one-half of the income of my estate not yet disposed of [the italics are mine] there be paid two annual payments of $2,500 each” to a nephew and niece during their respective lives. This clause apparently treats the “remaining one-half income,” i. e., the income which remained after the half income given to the wife for life, as a separate fund, and apparently authorizes the inference that the payments of income to the wife’s relatives after her death were by the testator considered as being made as, in part at least, “disposing of” the one-half income previously given to the wife. But while the entire income is apparently divided, there is so far no indication or suggestion that the principal is to be divided, or is not to remain entire.
The next paragraph, the fifteenth, provides for a payment to the issue of this nephew and niece, respectively, of the sum of $50,000, with cross-remainders on survivorship, and these two sums of $50,000 each are to be paid on contingencies which have not yet occurred. These payments, however, are specially directed to be made “out of the principal or corpus of tire second one-half of my estate.” Up to this point in the will, as I have said, there had been no indication of an°intention that the entire principal of the trust estate should at any time be divided into two portions, and this direction for manner of payment at this time by a division of principal cannot, in my judgment, avail
It seems to be, however, a plain, clear direction that these payments, when made, shall be made in this manner, and when the contingency arises requiring the payments, or either of them, to be made, under this clause, a division of the principal into two trust funds may then be required, in order to carry out all the express provisions of the will. Had similar directions been given that the $50,000 legacies previously given to the issue of the wife’s kin be paid “out of the first half of my estate,” I am inclined to think that the division of the entire estate into two trust funds would then have been required on the happening of the contingencies therein provided for payment, and that in the absence of any special direction for a previous division, the division into two funds must have taken place as soon as the contingency for payment out of either specified half of the principal first arose. But no such provision for payment of the two $50,000 legacies to the issue of the Avife’s kin was made, and in the absence of any other provision controlling the holding of the trust estate as an entire estate, it must, I think, be so held, at least, until this contingency for payment under this fifteenth paragraph arises, and the trustee under the will has no authority to divide the principal of the trust estate into two portions until that time.
The matter of the disposition of the “surplus income” until the time arrives for the division of the principal, remains to be specially considered.
Up to this point in his will (the fifteenth paragraph), the testator had made provision, first, for the entire one-half of the net income during his wife’s life, Avith an express disposition after her death, among her relatiA^es, of a portion only of this one-half income Avhich would have come to her, leaving the balance of this one-half undisposed of by any express direction, and he had also, secondly, made express provision for only a portion of the other one-half of the income of the entire estate.
Then folloAVS a separate distinct paragraph, the sixteenth, dealing aaíüi income alone, as follows: “I further direct that
The “surplus” income, taking this in the sense of income not actually or effectively disposed of, certainly included a balance of income after the wife’s death not absorbed by the payments to the previous legatees, and the precise question is whether this express direction as to “surplus income” includes all income not actually disposed of, or whether this bequest of the surplus income is to be treated as a specific bequest of the surplus of the remaining or second one-half. If so, the “surplus” of the first one-half falls into the general residuary bequest of the equitable or beneficial estate in which the trustees have the residuary legal title. This clause, the seventeenth, directs all the residue to be divided into nine equal parts and paid over, three-ninths to each of his sisters, her heirs and assigns, and one-ninth each to his nephew J. H. Downey, Ms niece Helen L. Downey, and Katherine IST. Hippes, his wife’s niece. The time for this payment Is not expressly fixed, but treating the previous clause as one disposing of the entire surplus income of the estate, not merely of the surplus of one-half of the income, this last residuary clause applies to the principal fund alone of the equitable estate, leav
It must be conceded, I think, that by reason of the confused and inartificial character of the will as bearing on these points of dispute, the contention can fairly be made that such division of piincipal into two funds from its inception and a separation of the incomes into two distinct portions is suggested or indicated, but, as I have stated, it cannot be safely said, that taking the whole will, such division has been directed, or that there are any directions in the will sufficient to justify the conclusion that the testator intended in the sixteenth paragraph to restrict the "surplus income” to that of the second half of the fund referred to in the fourteenth paragraph.
On considering the whole will and the arguments and briefs of counsel, I reach the conclusion, first, that during the joint lives of the sisters, they are equally entitled to the surplus income of the entire estate after deducting tire special legacies, and second, that until the happening of the contingency requiring the payment out of one-half of the principal fund of the legacies to the issue of J.'Fethermark Downey and Helen M. Downey, or either of them, the fund is not divisible under the will, but is to be held as an entire fund. And this construction, as to the time of division, does, I think, carry out all the provisions of tire will. Any construction fixing either the -inception of the trust or any other time for the division of the principal, must necessarily rest more on a supposed plan, indicated or suggested by the partial and incomplete provisions, rather than on the construction of the -words of the entire will actually used by the testator and from which his intention must finally be determined.
Whether, on the death of either of the sisters, the payment to the survivor of either the entire or any portion of this surplus income is to be continued, is not decided. Decision upon this point should not take pláee until the' question arises and the parties then interested are heard, and at this time would be premature.