6 Del. Ch. 40 | New York Court of Chancery | 1886
Jacob Kubencane, the complainant, as trustee under the last will and testament of John McKnight, deceased, has filed his hill against the defendants, praying that they may be decreed to interplead and settle between themselves their rights in respect to the sum of $1,200 mentioned in the fourth item of the last, will and testament of John McKnight, late of Mill Creek Hundred, Hew Castle County, this State. .
Said fourth item is in the following words: “I give and bequeath unto my friend Jacob Kubencane the sum of $1,200; in trust, nevertheless, to pay the interest-thereof unto my niece, Annabella Town, half-yearly, for-an d during her natural life, without being subject to the debts, control, or interference of any present or future husband she may take, and her receipt alone to be a sufficient discharge; and from and immediately after the decease of the said Annabella Town, to pay the said principal sum of $1,200 to the child or children of the-said Annabella Town," free and discharged from this, trust. And my mind and will is, and I do hereby charge-all my real and personal estate with the payment of the-legacies or bequests hereinbefore mentioned.”
The fifth item of the will is as follows: “All the rest,, residue, and remainder of my estate, real and personal, I give, devise, and bequeath unto my nephew, James W. Ball, his heirs and assigns forever, charged and chargeable with the payment of the said legacies or bequests ashereinbefore provided.”
Annabella Town had a child born in the lifetime of the testator, in 1844, named Anna T. McKee. The testator died in 1851. Annabella Town had another child b.orn after the testator’s death, 1852, named James Town.
James Town died about 1855, aged three years.
Anna T. McKee married Elwood B. McKee in 1869, and died April 24, 1885, leaving to survive her her said husband, Elwood B. McKee, and one child, Erancis T. McKee.
Annabella Town died October 6,1885, without having had any other child or children.
The legacy of $1,200 was paid to the complainant, Jacob Rubencane, the trustee of the same, named in the will. This $1,200 is claimed by Elwood B. McKee, administrator of Anna T. McKee, deceased, and . administrator of James Town, deceased; and also by Charles M. Kewlin, administrator de bonis non cum testamento wmexo of John McKnight,.deceased, defendants in the bill of interpleader.
The question is, Did Anna T. McKee, the child of Annabella Town, born in 1844, in the lifetime of the testator, and James Town, a child of said Annabella Town, born after the death of the testator, take vested interests in the bequest of $1,200, the interest of which was to be paid by the trustee to their mother, Annabella Town, during her lifetime ? And did their interests respectively survive to their administrator, they having died in the lifetime of their mother? Or did the said legacy lapse or become a portion of the estate of John McKnight, the testator, deceased? And is the ■same payable to his administrator de bonis non cum testamento annexa ?
It is impossible that it should have lapsed, because the
If the said $1,200 does not belong to the administrator of Anna T. McKee and James Town, children of Annabella Town, then it belongs, under the residuary clause of the will, to James W. Ball. John McKnight did not die intestate as to any portion of his estate. He bequeathed and devised his whole estate, real and personal, to the person named in his will. The $1,200 mentioned in the fourth item of his will was given to Jacob Ruben-cane, in trust to pay the interest thereof unto his niece, Annabella Town, half-yearly, for and during her natural life. “And from and immediately after the decease of the said Annabella Town, to pay the said principal sum of $1,200 to the child or children of the said Annabella Town, free and discharged from this trust.”
The bequest of the principal sum was not to Annabella Town during her life, and from and immediately after her decease to any child or children of hers who might survive her; but the corpus of the $1,200 was devised to Jacob Rubencane in trust; not to pay that sum, but to pay the interest upon that sum to Annabella Town, half-yearly, during her natural life, and then “from and immediately after her decease to pay the said principal sum of $1,200 to the child or children of the said Annabella Town, free and discharged from this trust.”
Can there be any doubt that had Anna McKee—who was born in the lifetime of the testator and survived him until April 24, 1885, and died only about six months be
Was the surviving of her mother, made a condition toiler having any interest in the principal sum of $1,200,. made a condition by the testator in the bequest? If not, how is such a condition created?—and how can such a-condition be implied?
The same questions are applicable in respect to the interest of James Town, the child of Annabella Town, who was born after the death of the testator and died in 1855, aged about three years.
If the interest in the principal sum of $1,200 was a vested interest in these children, respectively, then it mattered not whether they survived their mother or not. They were both children of Annabella Town. Had they survived their mother they would have been entitled to receive from the trustee the said sum of $1,200. Having died before their mother, their-interest, respectively, in said sum survived to their administrator.
In the case of Conwell v. Heavil, 5 Harrington, 296, it was decided that a bequest to A, B, and C, at the marriage or decease of the testator’s sister, .to each $300 in cash, to be paid them by his executor, was held to be a-vested legacy in A, B, and O. In that case Elias Con-well, one of the legatees, died after the testator, but before the death or marriage of the testator’s sister, who died unmarried.
The law applicable to such cases was thus stated by Ohief Justice Booth in the case referred to: “When a. legacy is directed to be paid at a future time, or on a-future event, it is vested or contingent, according to the intent of the testator, as expressed "in his will. If the
The case in 5 Harrington and the present case are very .similar in their facts, and the law applicable to each is the same.
The payment of the legacy of $1,200, the right to which is in controversy in this cause, must be considered .as postponed for thé convenience of the estate, that the interest on the same anight be paid to Annabella Town •during her life.
v It was not postponed on account of the age, condition, •or circumstances of her children, who were to take the ■principal sum at her death.
The general rule on this subject is that a legacy in the form of direction to pay, or to pay and divide at a future period, vests immediately if the payment be postponed ■for the convenience of the estate or to let in some other interest. Hawk. 232.
How it is manifest, from the terms of the bequest, that the only reason why the legacy of $1,200 was postponed to the period of the death of Annabella Town, was that ■the interest might be paid to her for her life, free from
I think that there can be no doubt that a proper construction of this will requires that Rubencane, the trustee, should pay the legacy of $1,200 to the administrator of the children of Annabella Towxi, although she survived her children, because their interests, respectively, in said sum, were during their lives vested, and not contingent.
Let a decree be drawn accordingly.
