55 N.H. 11 | N.H. | 1874
Lead Opinion
The question to be determined is, whether, under the fourth clause of the will of Mehitable Godfrey, her grandson, Charles Brown Godfrey, took a vested legacy, or whether the legacy was contingent depending on his attaining the age of twenty-five years.
In Furness v. Fox, 1 Cush. 136, the rule taken from 3 Woodeson 512 is laid down as follows: "If the time of payment merely be postponed, and it appear to be the intention of the testator that his bounty should immediately attach, the legacy is of the vested kind; but if the time be annexed to the substance of the gift, as a condition precedent, it is contingent and not transmissible."
The same rule is stated by BELLOWS, J., in Brown v. Brown,
The established rule of construction was further held, in Brown v. Brown, to be "that if the bequest be of a sum of money to the legatee `at the age of twenty-one years,' or `if or provided he arrive at that age,' then the interest is contingent, unless these terms are controlled by other parts of the will. On the contrary, where the gift is of a sum of money to the legatee, `payable' or `to be paid' at the age of twenty-one, the legacy vests immediately, and upon the legatee's death before that age goes to his representative."
The weight of authority in support of this view is so great that it cannot now be questioned. Felton v. Sawyer,
The law favors vested in preference to contingent estates, if it is consistent with the intention of the testator. Burleigh v. Clough,
Mehitable Godfrey, by the fourth clause of her will, bequeathed the residuum of her estate to Winthrop N. Dow, to be held in trust for her grandson, Charles B. Godfrey, until he should attain the age of *16 twenty-five years, at which time Dow was ordered to pay over and deliver to Charles B. the estate so held by him in trust. If the testatrix had stopped here, the case would present no difficulty. The estate is given to Dow in trust for the benefit of Charles B., and vests immediately upon her death, the trust-estate to cease when Charles B. shall attain the age of twenty-five, at which time it is to be paid over and delivered to the beneficiary. Time is not annexed to the substance of the gift as a condition precedent, but payment is postponed. Do the words added by the testatrix, "from and after that time to belong to the said Charles Brown Godfrey, his heirs and assigns forever," affect the construction that would otherwise be given this clause of her will?
This property was given to the grandson through the intervention of a trustee. I think this language is not to be construed as indicating an intention to postpone the vesting of the legacy, but rather as declaring the intention of the testatrix that when the beneficiary should attain a given age, the property should, from and after that time, belong to him and his heirs and assigns, discharged from the trust-estate.
The general rule is, that a trust-estate is not to continue beyond the period required by the purposes of the trust. 4 Kent's Com. 204; Player v. Nicholls, 1 B. C. 336; Doe v. Simpson, 5 East 162; Doe v. Timins, 1 B. Ald. 530. Although it was unnecessary, yet to remove the possibility of having a doubt, she was careful to add these words as expressing her intention to be in conformity to the general rule.
This view is confirmed by the provision that is made in the clause immediately following, which is in these words: "Provided, nevertheless, that if it shall be found necessary to expend any portion of said estate so holden by said Dow for the support of said Charles, then so much and no more may be so appropriated for his support until he shall attain the aforesaid age of twenty-five years." By the third clause in the will, thirteen hundred dollars in bank stock was bequeathed to the said Charles, without the intervention of a trustee, to be delivered to him when he should attain the age of twenty-one years. No question can possibly arise but that Charles took a vested legacy under this clause, payable upon his attaining a certain age. It seems to me that it was evidently the intention of the testatrix, on the one hand, to guard against the improvident use of her estate by her grandson, by fixing stated periods when he should come into possession of the same; and, on the other hand, provision was made for extraordinary emergencies, should his necessities require it, by authorizing the trustee to expend such portion of the trust-estate (which must include principal as well as interest) as his wants might require.
This view is further confirmed by the fact that if the testatrix intended this to be a contingent instead of a vested legacy, no disposition by will is made of her estate in case of the failure of Charles to reach the prescribed age. If such had been her intention, she would hardly have failed to provide for such a contingency.
For these reasons I am of the opinion that the testatrix intended to make an immediate bequest to her grandson, but that the estate should *17 not go into his hands until he should reach the age of twenty-five years, when he should thenceforth hold it discharged of the trust.
The declarations of the testratrix [testatrix] as to her intentions, at the time the will was made, that the property should not go to the Browns, were not admissible. Parol testimony cannot be received to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator — Shattuck v. Stedman, 2 Pick. 469; 1 Redf. on Wills 496; Gale v. Drake,
Concurrence Opinion
It appears from the will that the testatrix intended to dispose of her whole property, because the clause which we are seeking to interpret was a residuary clause. It also appears that she had distinctly in her mind her son James, the only personal representative, excepting her grandson, mentioned in the will. She gave this personal representative a small bequest, showing thereby that, although she did not intend to pass him over, he was not a special object of her bounty.
The bequest is expressly given to the trustee for the grandson, and, if necessary for his comfort, may be wholly expended for him by the trustee before he reaches the age of twenty-five. At that age it is to be paid to him, and from and after that time to belong to the said Charles Brown Godfrey, his heirs and assigns forever, i. e., as I understand it, no longer to be under the control of a trustee, but subject entirely to his control.
Having so disposed of this fund, it was quite natural that she should stop there without considering the possible doubts which might be raised if her grandson should not reach the age of twenty-five years. But if her intention had been to make his reaching the age of twenty-five years a condition precedent to the vesting of her legacy, the contingency of his death, before that time, must have been distinctly in her mind; and it is to me incredible that she should have forgotten to have given the remainder over.
These considerations, all suggested by the will itself, appear to me conclusive of its construction. The intention of the testatrix, then, being that "her bounty should attach immediately, the legacy is of the vested kind," according to the rule in 3 Woodeson 512, cited with approbation by METCALF, J., in Furness v. Fox, 1 Cush. 136.
It is urged that the circumstances, proved and sought to be proved *18 by extrinsic evidence, show that the testatrix intended otherwise. In Redfield's American Cases upon the Law of Wills 601, the rule in regard to the admission of extrinsic oral proof, as deduced by him from the most recent judicial expositions of the subject, is expressed as follows: "It is simply this, that the language used must define the import of the instrument, without the admission of any extrinsic evidence of the intention of the testator in the use of such terms as his will is expressed in, except in the single case of there being two objects or persons to whom the language of the will applies with legal certainty, so that either might be justly regarded as coming within the terms of the instrument, if it were not for the other."
There is nothing, however, ambiguous in the terms of this will. There is no doubt about the meaning of the words, and no testimony is offered tending to show that the words were used by this testatrix in any sense different from their ordinary acceptance, or tending to show any latent ambiguity, or taking the case out of the rule excluding parol testimony, as above expressed.
For these reasons, which I have endeavored to express as briefly as possible, I concur in the opinions already expressed. Felton v. Sawyer,
Concurrence Opinion
I am of the same opinion. I cannot discover anything in the language of the residuary clause in this will to raise a doubt that the interest of Charles B. Godfrey was vested and not contingent. On its face, the gift is absolute and unqualified, so far as regards the trustee, — the time of its taking effect, even, by possession in him, not being postponed. The clause, as to the time when the principal sum should be paid over to the cestui que trust, can be regarded in no other light than a direction to the trustee with reference to the execution of the trust, and most distinctly and unequivocally relates to the time of payment, and not to the substance of the gift.
I see nothing in the situation of the property or the relations of the testatrix, as shown or offered to be shown at the trial, inconsistent with her intention thus clearly expressed in the will, — certainly, nothing which can be allowed the effect to control the unambiguous language there found.
I have looked into a large number of the numerous cases bearing more or less directly upon the question here, including those to which our attention has been called by counsel, and have been unable to find anything which would warrant us in holding that this legacy lapsed upon the death of Charles B. Godfrey before arriving at the age of twenty-five.
It has been urged that the latter part of the clause under consideration shows an intention that the legacy should not vest until Charles *19 B. Godfrey arrived at the age of twenty-five. The language is, — "At which time I order and direct the said Winthrop N. Dow to pay over and deliver to the said Charles Brown Godfrey all and singular the estate so by him held in trust as aforesaid, from and after that time to belong to the said Charles Brown Godfrey, his heirs and assigns, forever." This is to be considered in connection with what precedes it, namely, an absolute and unqualified gift to Dow in trust for Charles B. Godfrey. And, looking at the whole together, if we give the language its strict legal effect, it is entirely consistent with an intention that the legacy should vest immediately, according to the terms of the will. It amounts to no more than a provision that the legal title and possession should at that time vest in Charles B. Godfrey, together with the equitable title which had been in him all the time after the testator's death.
Brown v. Brown,
The parol evidence offered, as to the actual intention of the testatrix that the property should not go to the Browns in case Charles B. Godfrey died before coming to the age of twenty-five, was clearly inadmissible.
The plaintiff is entitled to recover the sum of $1,251.25 and interest, less the defendant's proper charges for the custody and care thereof.