26 App. D.C. 283 | D.C. Cir. | 1905
delivered the opinion of the Court:
1. The will makes certain bequests in addition to that to Arthur Morson Payne, contained in the eighth paragraph, and
In the eighth paragraph the testator, after reciting that he has, for reasons adequate and satisfactory to him, separated the share of his son Arthur from the shares of the rest of his children, bequeaths to said Arthur IVIorson Payne the sum of $26,000 for and during the joint lives of himself and his wife Bettie. It is further provided that, if said son survives his said wife, the same is bequeathed to him absolutely, but, if his said wife shall survive him, then the said legacy is given in trust to the American Security & Trust Company, of the city of Washington, to invest, reinvest, and keep invested, and pay over the income to the said wife for the full term of her natural life, with power conferred upon her to bequeath the said legacy to such of the testator’s children or grandchildren as she may elect. In case she does not exercise the said power, then, from and after her death, the same shall go to and be distributed among the testator’s next of kin.
The question involved is, whether the executor shall at once pay over the entire amount of this legacy to Arthur Morson Payne, and be thereby discharged; or whether he shall retain the same during the life of the legatee’s wife, paying to him only the income derived therefrom.
The rule of the English chancery in respect of the custody of chattels bequeathed to one for life with remainder over has been stated by Chancellor Kent as follows: “The interest of the party in remainder in chattels is precarious, because another has an interest in possession; and chattels, by their very nature, are exposed to abuse, loss, and destruction. It was understood to be the old rule in chancery, that the person entitled in remainder could call for security from the tenant for life, that the property should be forthcoming at his decease, for equity regards the tenant for life as a trustee for the remainder-man; but that practice has been overruled. Lord Thurlow said that the party entitled in remainder could call for the exhibition of an
In Maryland, from whence our jurisprudence is derived, the later English rule has been adopted and made to depend, not so much on the difference between a specific and a residuary bequest, as on whether the nature of the property is such that it can be enjoyed without being actually possessed. Evans v. Iglehart, 6 Gill. & J. 171, 196; Wootten v. Burch, 2 Md. Ch. 190, 199; Miller v. Williamson, 5 Md. 219, 236; State use of Taylor v. Brown, 64 Md. 97, 100, 1 Atl. 410.
The distinction that has been made between chattels of one kind and another, as regards their uses, is of no importance in the determination of this case, because we have here a specific bequest of money that is clearly governed by the rule, in the absence of an express intention of the testator to the contrary. The same rule prevails in the other States, generally, where unaffected by statutes relating to wills and the administration of estates. In a case in the supreme judicial court of Massachusetts, where there was a bequest of money for life with remainder over, Chief Justice Shaw said: “I take it that nothing is now better settled than that such a gift is a gift of the interest only, and, if no trustee is specially named, it is the duty of the executor to invest the money, and pay the interest only to the person entitled for life, and preserve the principal for him vfIio is entitled to take afterwards.” Field v. Hitchcock, 17 Pick. 182, 28 Am. Dec. 288. The principal in such case must be held by the executor in trust. Hooper v. Bradbury, 133 Mass.
That this rule is founded on broad principles of equity and sound public policy there seems to be no reasonable doubt. Under its operation, the legatee, who is entitled only to the use of the fund for life, whether delivered into his possession or not, receives all the benefit to which he is justly entitled, while the interests in remainder are fully protected.
2. It remains to consider whether there is a reasonable indication in the will of an intention that the possession of this legacy during the life of the first taker shall not be governed by the foregoing rule. If such an intention can be fairly deduced from the language used by the testator, not only in the eighth, but in other clauses of the will, it must necessarily control. The appellees, while not denying the existence of the rule, contend that very slight indications in the will will be construed as showing that the testator intended the life tenant, rather than the executor, to be the trustee. In support, they rely especially upon the case of Re Garrity, 108 Cal. 463, 38 Pac. 628, 41 Pac. 485, where the foregoing language is used in the opinion. The indications of the intention in that case, as recited in the opinion, were not slight, but rather strong.
The clause of the will was both a devise and bequest of all property, of every kind and character, to the wife, “to have, to hold, and to enjoy for the term of her natural life.” The devise and bequest over was of the residue and remainder “remaining” after the termination of the life estate. It is to be noted, also, that, under the law of California, the wife was entitled absolutely to one half of the entire estate as community property,
We also fail to find anything in the fourth clause which sheds any satisfactory light upon the intention of the testator as to the possession of the legacy given in the eighth. It simply directs the executor, in the event of the survival of the testator’s wife, to invest the sum of $10,000, and pay the interest thereon to her during her life; and this fund, after her death, he is di
Not without some doubt, it must be confessed, we are constrained to hold that the proper construction of the will does not require the executor to pay over the fund to Arthur Morson Payne, but that it is his duty thereunder to retain the same during the life of the legatee’s wife, investing it and paying over to him its income merely. In the event of his surviving her, then the whole becomes payable to him at once. If she survive him, then it is to be paid over to the trustee specially named during her life. The doubt that has been expressed is no more that that which so often arises in endeavoring to ascertain the intention of a testator where, not being express, it must be deduced from the language of his will, and nothing else.
The conclusion which we have reached will, at least, work no special injury to the tenant for life, while removing the possibility of injury to the interests in remainder. •
The decree will be reversed with costs to be paid by the executor out of the assets of the estate in his hands, and the cause remanded with direction to enter a decree in conformity with this opinion. • Reversed.