63 Wis. 529 | Wis. | 1885
Lead Opinion
The following opinion was filed July 2, 1885:
The testator had. sufficient sagacity to accumulate a large fortune. He lacked the requisite sagacity
In construing the different provisions of such a will, it seems to be especially necessary to first fully comprehend the scheme of the whole will, and the ultimate purpose or object sought to be secured in the making of it. To discover such purpose and object, upon the principles of law applicable, is the business of construction. Putting ourselves as far as possiblein the place of the testator at the time of making the will, and reading the language employed in the light of the facts and circumstances then existing and apparently in his mind, we may be enabled to 'discover his real intentions, and the objects thereby sought to be attained.
Long prior to the making of the will he had been di
Of course, the rights of the parties under the will became vested immediately upon the death of the testator. Newman v. Waterman, post, p. 612; Van Vechten v. Van Veghten, 8 Paige, 104; Banks v. Thornton, 11 Hare, 176; Bank of Hamilton v. Lessee of Dudley, 2 Pet. 492; Miller v. Miller, 10 Met. 393; Canfield v. Bostwick, 21 Conn. 550; Gold v. Judson, 21 Conn. 616. To be effectual, however, in passing title, the statute required that it should be admitted to probate (sec. 2294, R. S.; Newman v. Waterman, supra),but, when so admitted, it related back to the death of the testator', and is to be treated as speaking from that moment.
The disposing parts of the will are all in prcesenti, yet singularly the will passed the absolute and then present title to but a very small fraction of the property on hand at the time of the testator’s death. The immediate dispositions are confined almost wholly to the income thereafter to accrue. By the third clause of the will the testator did give to his two daughters, jointly, the absolute title of all of his “household goods, furniture, books, pictures, plate, and ornaments.” These were valued at $859.85. This seems to be the only property in being at the time to which title was absolutely disposed of in prcesenti by the will. By the third clause he devised the homestead to the two daughters, “and to the survivor of them, during their natural Uves, . . . free of taxes, expenses of repairs, and insurance.” He appointed liis daughters the executors of his will, with a request that they should not be required to give security. He ordered and directed his executors to pay all his just debts, including mortgages on his real estate,
It follows that, aside from the property given to the daughters jointly by the third clause of the will, as above mentioned, the only dispositions made by the will of any portion of the estate, during the lives of the daughters and each of them, is a certain fractional share of the net income of the estate to each of the daughters, and a certain other fractional share of such net income to each of the grandchildren,— including those which might thereafter be born,— during the natural life of such grandchild and such daughters, respectively. This leaves almost the entire corpus of the estate undisposed of so long as either of the two daughters shall live. Unless a large number of grandchildren shall hereafter be born, it will also leave undisposed of during the same period a very large.share of the net income of the estate. The fourth clause of the will is to the effect that, after the death of the testator’s daughters, he gave, devised, and bequeathed all the residue and remainder of his property, real and personal, to his surviving grandchildren, and to the legal issue of any deceased grandchild or grandchildren, by way of representation of such deceased grandchild or grandchildren, and to their heirs and assigns, forever, in equal parts. This obviously includes grandchildren born after the execution of the will, and also those born after the death of the testator, as well as those born before. It also includes the child or children of
The ultimate purpose of the testator is not so manifest in the giving as in the withholding. He provided a home for his daughters during their lives, respectively. In addition, he set apart such fractional shares of the net income of his estate as would in his judgment provide a comfortable support for his daughters and grandchildren during the lives of his daughters, respectively. But almost the entire corpus of the estate, and so much as might be left of the net income of his estate after satisfying the other provisions of the will, he tied up during the lives of his daughters, respectively, for his grandchildren, to be distributed to them as indicated, on the death of his daughters.
Prom what has been said, and the peculiar wording of the bequest to Ilenry, several very important and difficult questions of law are suggested, which will be considered in their order: In whom is and will be the title to the corpus of the estate (not mentioned in the third, clause of the will) during the lives of the daughters ? On the death of the testator did such corpiis go to the executors to be held by them in trust as long as either of them should live, and then on their deaths to be distributed to the s%t,rvivors mentioned in the fourth clause “of the will? Or did it go under the statutes to the heirs at law of the testator? If to the heirs at law, then did it go to them absolutely as their own property, and thus render inoperative and entirely defeat the fourth clause of the will? Or did it go to them in trust, to be held until the death of both of the daughters, and then to be distributed to the survivors named in that clause of the will ? Or did it go to the grandchildren living at the time
Of course, the legal title to personal property becomes vested in the executor on the probate of the will. Melms v. Pfister, 59 Wis. 192, and cases there cited. The office of an executor is in its nature a trust, in the discharge of which he acts as trustee. Groton v. Ruggles, 17 Me. 140; Carson v. Carson, 6 Allen, 399. The executor takes such title, therefore, subject to the trust and duties imposed by law, even where none have been specifically designated or declared in the will. Sec. 3785, E. S. Such duties and trusts are suggested by the bond required (sec. 3794, E. S.), when no exemption is made in the will. Sec. 3795, E. S. The executor is bound to make the proper returns, and render the proper account. Sec. 3794, E. S. lie is bound to administer according to law, and the will of the testator, all Iiis goods, chattels, rights, credits, and estate, and out of the same pay and discharge all debts, legacies, and charges properly chargeable thereon, or such dividends thereon as may be ordered and adjudged by the county court, and to perform all the orders and judgments of that court. Hid. He may take the possession of real estate, receive the rents, issues, and profits, and keep the same in repair. Secs. 3S22, 3823, E. S.
By the statutes, the time for paying debts and legacies, and to make a final settlement of the estate and of the accounts of the executor, may be extended, but not beyond six years from the time of granting letters testamentary. Sec. 3850, E. S. Such limitation is to secure a speedy set
The will contains no express provision as to who shall have the title to any of the property, real or personal, during the lives of the daughters, respectively. But the trusts and duties thus imposed by the will are, necessarily, lifelong in their duration. They cannot be terminated and
These things necessarily imply that the executors shall hold in trust the moneys with which to make such payments, disbursements, and purchases. Where no directions are given as to the manner in which the fund shall be invested, prior to its final appropriation in satisfaction of the trust, it is left to the discretion of the trustees. Deaderick v. Cantrell, 10 Yerg. 263; S. C. 31 Am. Dec. 576. A joint trustee of such discretionary trust is held to a more stringent liability for the acts of his co-trustee than in case of a directory trust in which the directions have been followed. Hid. These principles are applicable to the personal prop
The question as to who took the title of the real estate of which the testator died seized, and who will hold the same while the daughters, or either of them, live, and until distributed under the fourth clause of the will, is more difficult to determine. Since the will expressly, or by necessary implication, imposes upon the executors such duties, and creates in them such trusts, but fails to specifically name them or any one as such trustees, or give, devise, or bequeath the property to them or any one in trust, we must hold it to be the duty of the executors, and the survivor of them, as such, to administer the estate according to the provisions of the will, notwithstanding the duties thus imposed include such as are usually performed by a trustee. This is the rule indicated by the authorities. Saunderson v. Stearns, 6 Mass. 31; Dorr v. Wainrighl, 13 Pick. 328; Hol
The general import of this will seems to be equivalent to saying “ that the residue of my property, both real and personal, shall remain as my estate as long as I have a living child;” as in Mather v. Mather, supra. In Bradley v. Amidon, supra, the simple management and control of the property for the time named, and'the disbursements of the income, was held to create a valid trust. In Craig v. Craig, supra, there was no devise or bequest to the executors, as trustees of a certain share of the estate, but it was held from the whole will that a valid trust was created during the life of the daughter. The reason for this was given by the chancellor, thus: “Por a devise of the rents and profits of land for life, without anything more, is but a different mode of expression to create a devise of the land itself during the same period. Here, however, the testator clearly shows that he intends that his daughter Gertrude shall receive the rents- and profits of the real estate embraced in that share, as well as the income of the personal estate included therein, through the medixim of the executors. The executors, therefore, take the legal title to her share of the real estate as trustees, by implication, to enable them to rent the premises, and receive the rents and profits thereof,
In Brewster v. Striker, supra, the lands were devised to the grandchildren and their heirs forever, but the executors were required to rent the same, and pay the rents, issues, and profits to the grandchildren annually during their lives; and it was held that the executors, by implication, took the legal estate during the lives of the grandchildren. To the same effect are Leggett v. Perkins, supra; Vail v. Vail, supra, In Tobias v. Ketchum, supra, the will was, in effect, somewhat similar to this, and it was held that “ where the executors are clothed with full power and authority to rent, lease, repair, and insure the estate during any period of time it shall remain unsold and undivided, they are vested with the legal title thereto.” A devise of the care and management of land, and of the disposition of its income, during the life of the devisee, for the benefit of another, confers upon the devisee a life estate in trust. Butterfield v. Haskins, 33 Me. 392. In Van Steenwyck v. Washburn, supra, a clause in a will directing the executors to bear constantly in mind the wants of an insane widow, and to set aside, use, and expend whatever moneys might be necessary, consistently with her condition, to provide for her comfort and physical health, without limit for the purposes indicated, was held to create a personal trust in the executors, in addition to their powers and duties as such, which would continue during the life of the widow.
But the estate in fee will only be implied to the extent required to carry into execution the trusts imposed. Upham v. Varney, 15 N. H. 462; Deering v. Adams, 37 Me 264; Pearce v. Savage, 45 Me. 98; Ellis v. Fisher, 3 Sneed, 231; Morton v. Barrett, 39 Am. Dec. 575; Hawk. Wills, 143-145. A general devise to executors in trust vests no estate in them except for such of the declared purposes as require that the title be vested in them. Manice v. Manice, 43 N.
By our statute “ every person who, by virtue of any grant, assignment, or devise, now is or hereafter shall be entitled to the possession of lands and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein of the same quality and duration, and subject to the same conditions, as his beneficial interest.” Sec. 2073, E. S. This merely changed what, but for the statutes, would have been an equitable interest in the use of the property, into a legal estate in the property itself of the same quality and duration. Vander Volgen v. Yates, 3 Barb. Oh. 243. Here each of the daughters had such beneficial interest through the medium of themselves, as executors, to the extent of three twenty-fourth parts of the net income of the entire estate, which, of course, includes the real estate. So each of the executors, as such, took a beneficial interest to the extent of the fractional shares of such net income which she took for her children. Such beneficial interests were life estates. Seed v. Reed, 9 Mass. 372; Andrews v. Boyd, 5 Me. 199; Butterfield v. Haskins, 33 Me. 392; France's Estate, 75 Pa. St. 220; Estate of Schryer, 2 Brewst. 526; Hawk. Wills, 140 et secy. But “ no person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such interest.” Sec. 2089, E. S.
As we construe this will, the executors were entitled to the possession of the real estate, and the rents, issues, and profits thereof, as well as the personal property. The statutes authorize the creation of such express trusts for the purpose of receiving and disbursing such rents and profits. Subd. 3, 4, sec. 2081, E. S.; Leggett v. Perkins, 2 N. Y. 297; Haxtun v. Corse, 2 Barb. Ch. 506. The power thus given
From what has been said it is manifest that, under the will, the executors and the survivor of them, as such trustees, must have the possession of the real estate during life, with the right to do everything necessary or convenient to carry into execution the duties and trusts imposed by the will. Such possession and rights constitute a legal estate which must continue during the lives of the daughters and the
'Who are or will be the survivors thus designated in that clause of the will? Of course, they will include every grandchild who survives both of the daughters, whether such grandchild is now living, or may hereafter be born. As the daughters were the only surviving children of the testator, it is manifest that all his grandchildren must be born before the death of both of the daughters. But thes class which is thus made the object of the testator’s gifts, devises, and bequests is not limited to such “ surviving grandchildren,” but extends by way of representation “to the legal issue ” of any predeceased grandchild or grandchildren. By that clause of the will, the testator, in effect, on the death of both his daughters, gave, devised, and bequeathed “ all the residue and remainder ” of his property, real and personal, to such of his grandchildren as should then be living, and to the legal issue of any predeceased grandchild, “ and to their heirs and assigns, forever, in equal parts.”
The complete vesting of the title and possession of such “ residue and remainder ” is, by the will, postponed until the death of both the executors, who hold possession for life, and hence every person answering to the description thus given at the time of the death of the last surviving daughter, are the persons entitled. Gill v. Barrett, 29
“ For many reasons,” said Mr. Justice Grat, in McArthur v. Scott, 113 U. S. 340, “ not the least of which are that testators usually have in mind the actual enjoyment rather than the technical ownership of their property, and that sound policy as well as practical convenience require that titles should be vested at the earliest period, it has long been a settled rule of construction, in the courts of England and America, that estates, legal or equitable, given by will should always be regarded as vesting immediately, unless the testator has by very clear words manifested an inten
At the time of the testator’s death he had four grandchildren living. As members of the class described, they were, and are, prospectively entitled to share in the enjoyment of the estate. Did the residue and remainder of the estate, or any part of it, become vested in them on the testator’s death? If so, did it open and let in the grandchild born since the death of the testator? Will it open and let in such other grandchildren as may hereafter be born? Will it also open and let out any predeceased grandchild; and, by way of substitution, open and let in any legal issue of such predeceased grandchild? Unless the law will permit such remainder or some portion of it to so open and let in or out, as the case may be, no part of it can be regarded as vested.
Some confusion has arisen in the use of the word “ vested ” when applied to personal property. Mr. Hawkins says, in effect, that originally the word had reference only to real estate. It signified the acquisition of a portion of the actual ownership. The fee simple being supposed to be carved out into parts or divisions by the creation of particular estates, a grant to any person of one of these portions of the fee,
From these definitions it may be said with propriety that Legacies payable at a future time certain to arrive, and not subject to a condition precedent, are vested. This is abundantly illustrated by the rules deduced from tbe authorities by tbe learned author last cited. Hawk. Wills, 226, 227, 232, 233, and cases there cited; and see 2 Jann. Wills, 710, (5th Am. ed. from 4th London). On the other band, legacies only payable on an event wbicb may never happen, and hence subject to a condition precedent, are contingent. Hawk. Wills, 224. With these observations apparently in view, tbe learned author deduced from tbe authorities, as applicable to both real and personal property, this rule: “ A devise or bequest of a corpus or aggregate fund to children as a class, where tbe gift is not immediate, vests in all tbe children in existence at .the death of tbe testator,'but so as to open and let in children subsequently coming into existence before the period of distribution.” Hawk. Wills, 71, 72; and see, also, 2 Jarm. Wills, 707-710 (5th Am. from 4th
In Carpenter v. Schermerhorn, supra, a testator devised to each of his six children an equal undivided sixth part of his real estate for life, and after the decease of each child devised the same to the children of such child and to their heirs and assigns, forever; and it was held that the devise in remainder was given to all the children of each child of the testator, as a class, and that each grandchild, the moment it came into existence, took a vested interest in the remainder in fee, subject to open and let in after-born children; and that such of them as died leaving issue transmitted that interest by descent to his or her issue, even in the life-time of the tenant for life, as a vested remainder in fee. In Denny v. Allen, supra, the testator gave the use and profits of his real and personal estate to his wife for life, and “after the death of his wife” devised .and bequeathed the same to all the children of his brothers and sisters. At the time of making the will and the testator’s death there were living forty-seven nephews and nieces, of whom thirty-eight, together with three others born after his death, survived the wife; and it was held that the forty-seven took a vested remainder in the land, which opened to let in the three born thereafter, and that the personal estate belonged to the forty-one (including the three) who survived the wife. In Ballard v. Ballard, supra, the testator gave to his sons, for
In the recent case of McArthur v. Scott, 113 U. S. 340, a testator devised lands and personal property to his executors, and their successors and their heirs, in trust, with directions too numerous and complicated to be stated here. Mr. Justice G-bay, in discussing the question of vested and contingent remainders, inter alia, said: “ The more reasonable inference is that, upon the termination of the life estate by the death of all the cMldren and grandchildren for whose benefit it was created, the great-grandchildren would be immediately entitled to the remainder. Castle v. Eate, 7 Beav. 296; Manfield v. Duggard, Gilb. Eq. 36; S. C. 1 Eq. Cas. Abr. 195, pl. 4. Upon that construction the contingency contemplated must necessarily happen at some time, either by the arrival of the youngest grandcMld at twenty-one years of age, or by the -death of all the grandchildren under age, and the case would come within the settled rule that when a remainder is so limited as to take effect in, possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event wMch must unavoidably happen by the afflux of time, the remainder vests in interest as soon as the remainder-man is
From the authorities cited. it is obvious that the words “ after the death of my said daughters,” in the fourth clause of the will, at least as to the real estate of which the testator died seized, refer to the time when the grandchildren will come into the complete possession and enjoyment, and not to the time of the vesting of the remainder in fee in them. In other words, the clause, in effect, devised such real estate, directly upon the death of the testator, to the grandchildren, born or to be born, and to the legal issue of any predeceased grandchild, subject, of course, to the dispositions made in other portions of the will to the daughters, as executors in trust and otherwise, during their lives and the life of the survivor of them. It follows that the devise of the land to the grandchildren, etc., by that clause of the will, must be construed to convey to them all the estate of the testator therein which he could lawfully devise, except in so far as it appears by other portions of the will as above indicated that the devisor intended to convey a less estate. Sec. 2278, R. S.; In re Estate of Pierce, 56 Wis. 565; Newman v. Waterman, post, p. 612. Such devise is denominated by the statute as a future estate, because it is limited to commence in possession at a future day, on the determination of a precedent estate created at the same time and upon which it is dependent, and hence is termed a remainder. Secs. 2033-2035, R. S. And since, as we have seen, there were persons in being at the time of the testator’s death who would have had an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate, it follows that the estate was a vested remainder. Of course, the remainder thus vested must open and let in after-born grandchildren, and the legal issue of any predeceased grand
So bequests of legacies and personal property,- when the payment or distribution is to he made at a future time certain to arrive, and not subject to a condition precedent, are deemed vested when there is a person in being at the time of the testator’s death, capable of taking when the time arrives, even though his interest is liable to be divested by dying without issue or diminished by future births. In such cases the legacy or bequest takes effect, in point of right, on the death of the testator. Devisme v. Mello, 1 Brown, Ch. 537; Middleton v. Messenger, 5 Ves. Jr. 136; Hallifax v. Wilson, 16 Ves. Jr. 168; Cooke v. Bowen, 4 Younge & C. (Exch.), 244; Scott v. Earl of S., 1 Beav. 154; Locker v. Bradley, 5 Beav. 593; Timins v. Stackhouse, 27 Beav. 434; M' Donald v. Bryce, 2 Keen, 284; Eyre v. Marsden, 4 Mylne & C. 238; Oppenheim v. Henry, 10 Hare, 441; Williams v. Clark, 4 DeG. & S. 472; Tucker v. Bishop, 16 N. Y. 402; Teed v. Morton, 60 N. Y. 502; Annable v. Patch, 3 Pick. 360. See, also, Hawkins and Williams, as cited above; Verrill v. Weymouth, 68 Me. 318; Brown v. Brown, 44 N. H. 281; Teele v. Hathaway, 129 Mass. 164; Dale v. White, 33 Conn. 294; Newberry v. Hinman, 49 Conn. 130.
Thus, in Cooke v. Bowen, supra, the testator directed the residue of his personal estate, after the death of his wife, who was tenant for life, to be divided by giving to his five nephews and nieces named, two shares each, and to their children one share each. The nephews and nieces survived the testator; and it was held “ that the residue vested in the nephews and nieces, and their children living at the testator’s death, or born in the life-time of the tenant for life? In Scott v. Earl of S., supra, the trustees were to stand possessed of the fund in trust for such of the testator’s grandchildren then born* or who should thereafter be born
So, in McArthur v. Scott, 113 U. S. 340, it is held that “ a direction that personal property shah be divided at the expiration of an estate for life, creates a vested interest;” citing in addition to two of the cases above, In re Bennett's Trust, 3 Kay & J. 280; Strother v. Dutton, 1 DeG. & J. 675. There are some things said in two of the early Massachusetts cases indicating that the rule in this respect, as to personal property, was different than as to real property. Dingley v. Dingley, 5 Mass. 535; Emerson v. Cutler, 14 Pick. 108. But such statements are repudiated in' the more recent decisions in that state. Winslow v. Goodwin, 7 Met. 380, 381; Wight v. Shaw, 5 Cush. 60; Bowditch v. Andrew, 8 Allen, 342, 343.
What is to become of that portion of the net income of the estate which is undisposed of during the lives of the daughters? Must it be allowed to accumulate during their lives, and then upon their deaths be distributed as a portion of the residue of the estate under the fourth clause of the will? Or must it be distributed during their lives? If so, to whom, in what proportions, and when? As already ob
The legality of such supposed accumulation is the question that confronts us. Several English cases were cited with elaboration upon the argument, upon the construction given to 39 and 40 George III. ch. 98, 18 Stats, at Large, 451. That act recited the expediency of restricting “ dispositions of real or personal estates, whereby the profits and produce thereof are directed to be accumulated, and the beneficial enjoyment thereof is postponed;” and so far as the act may, by analogy, be regarded as applicable to the question here presented, was to the effect that no person should, by will, dispose of any real or personal property, so and in such manner that the rents, issues, profits, or produce thereof should be wholly or partially accumulated for
Under this statute the English courts have held that although an accumulation be directed for a greater period than the term limited, yet that it is good for the twenty-one years, and void only as to the excess. Griffiths v. Vere, 9 Ves. Jr. 127; Evans v. Hellier, 5 Clark & F. 114; Elborne v. Goode, 14 Sim. 165; Morgan v. Morgan, 4 DeG. & S. 164; Tench v. Cheese, 6 DeG., M. & G. 453; Mathews v. Keble, L. R. 4 Eq. Cas. 467; S. C. L. R. 3 Ch. App. Cas. 691; 1 Jarm. Wills, 576 (303). So they have held that the unlawful accumulation, if arising from real estate, would go to the heir at law, and if from personal estate to the next of kin, and not
In Griffiths v. Vere, 9 Ves. Jr. 127, Lord EldoN expressed tbe opinion, subsequently followed by other judges, that to render tbe accumulation unlawful tbe will must contain an express direction to accumulate for a longer period than tbe time limited, and tbat tbe act did not apply to sucb an accumulation as arose by simple operation of law. In the later case of Tench v. Cheese, 6 DeG., M. & G. 453, Lord Chancellor CRANWoetii repudiated tbe doctrine, and declared tbat “ if a testator directs tbat to be done which, as a necessary consequence, leads to an indefinite accumulation, he must, within the meaning of the statute, be taken to have directed tbe accumulation.” Lord Justice TubNer concurred in this view, while Lord Justice Beuoe was in doubt. This last enunciation may have some support in the later case of Bective v. Hodgson, 10 H. L. Cas. 656. In the still later case of Mathews v. Keble, supra, the Vice Chancellor indicated a preference for the dictum of Lord EldoN, but in the same case on appeal, the judges seem to have an impression tbat tbe dictum of Lord Ceaxwoeth was after all tbe better dictum; and, to our minds, it is based upon tbe better reason.
Our statutes on the subject are quite different, and of course the English cases are not controlling. Our statutes provide, in effect, that “an accumulation of rents and profits of real estate for the benefit of one or more persons may be directed by any will,” but (1) “ If such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority. (2) If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the
These several provisions were copied almost literally from the statutes of New York, where they were in force as early as the revision of 1829 and since. . See the revision of that year. 1 R. S. of N. Y. 726, §§ 37-40; 3 R. S. of N. Y. 1882, p. 2178, §§ 37-40. Having taken these provisions from the statutes of New York, the constructions put upon them by the courts of that state are of peculiar significance and deserve ;our careful consideration. Here, as we have
It is here said to be impossible to bring the provisions for' such accumulation within the terms of the statute. This is put on the ground that such accumulation is for the benefit of a class, and is not made to minors eo nomine as such, and that the minors for whose benefit it was made, were not all in being “on the creation of, the estate” out of which the rents and profits were to arise.
In New York it has frequently been held, that, to be valid, the aecumulation must be solety for the benefit of minors, ;and cannot be legally made for the benefits of minors and ■adults together. Hawley v. James, 5 Paige, 318; S. C. 16 Wend. 61; Boynton v. Hoyt, 1 Denio, 54; Kilpatrick v. Johnson, 15 N. Y. 322; Pray v. Hegeman, 92 N. Y. 508.
Must such accumulation be held to be wholly void merely because some of the minors for whose benefit it was made were not in being at the time of the death of the testator, when the estate was created out of which the rents and profits were to arise? One of the purposes sought to be secured by requiring the minors, for the benefit of whom the accumulation is directed,, to be in leing on the creation of the estate out of which the rents and profits are to arise, in case such accumulation is directed to then commence, seems to be the vesting of the ultimate right to such accumulation as soon as such estate is created and the accumula^ tion commences. Subd. 1, sec. 2061, E. S. In cáse they commence at a subsequent period, then they must “ commence within the time . . . permitted for the vesting of future estates, and during the minority of the persons for whose benefit it is directed.” Subd. 2, sec. 2061.' But whether such accumulation commences on the creation of the estate out of which the rents and profits are to arise, or' at any time subsequent thereto, yet when it does commence the persons for whose benefit it is directed, must then be id-
As we have already shown, the remainder in fee to the lands of which the testator died seized, vested immediately upon his death in the grandchildren living at the time, subject to open and let in after-born grandchildren, and the legal issue of any predeceased grandchild by way of representation, and to divest such grandchildren as may die without legal issue. So we have shown that bequests of legacies and personal property, when the payment or distribution is to be made at a future time certain to arrive, and not subject to condition precedent, are deemed vested when there is a person in being at the time of the testator’s death capable of taking when the time arrives, even though his interest is liable to be defeated altogether by his own death, or to be diminished by future births. The mere fact that the use or fractional interest in the accumulation directed, which became vested in each grandchild living on the death of the testator, was liable tó' shift to the legal issue of any predeceased grandchild, or, in the absence of such legal issue, then to the surviving grandchildren, did not render so much of the direction as' is confined to the minority of such grandchild while living invalid. Harrison v. Harrison, 86 N. Y. 543; Gilman v. Reddington, 24 N. Y. 9; Monarque v. Monarque, 8 Abb. N. C. 102. The fact that the right to such accumulation did vest in the grandchildren living at the death of the testator, subject to open and let in others as indicated, seems to be established not only by what has been said and the authorities cited, but others. ’ See, also, Everitt v. Everitt, 29 N. Y. 40; Lovett v. Gillender,35 N. Y. 617; Manice v. Manice, 43 N. Y. 305; Knox v. Jones, 47 N. Y. 390; Embury v. Sheldon, 68 N. Y.227; Stevenson v. Lesley, 70 N. Y. 512. Some
It follows that the infants living'at the time of the-death of the testator were entitled to the expectant estate, and hence became thereupon, and by virtue of the residuary bequests in the fourth clause of the will, the owners in point of right of such accumulation, subject, of course, to having the quantity of their interests therein diminished by future births. For instance, the grandchild born since the testator’s death, immediately upon her birth became vested in point of right to her fractional share of such subsequent accumulation. The same will be true on the birth of any future grandchild. We therefore conclude that such accumulation is not wholly void merely because some of the infants for whose benefit it was made were not in existence until after the death, of the testator. Gilman v. Reddington, 24 N. Y. 9; Harrison v. Harrison, 36 N. Y. 543; Woodgate v. Fleet, 64 N. Y. 566; Stevenson v. Lesley, 70 N. Y. 512. In Manice v. Manice, 43 N. Y. 305, it was expressly-held that an accumulation out of the rents and profits of real estate for the benefit of an unborn child, to commence after his birth and terminate with his minority, was lawful if it commenced within the time permitted for the vesting of future estates.
The view we have taken renders it unnecessary to determine whether an accumulation for the benefit of minors, to , whom only a contingent interest in the estate is given by the will, would be valid. In' New York it has been held ..that, contingent remainders, and trusts for accumulation
The statute expressly declares that such accumulation must terminate at the expiration of the minority of the person for whose benefit it is directed. Sec. 2061, E. S. It goes further, and declares that if the direction for such accumulation is for a longer time than during the minority of the persons intended to be benefited thereby, then it shall be void as to such additional time. Sec. 2062. Erom these provisions we are authorized to infer, and must infer, that such accumulation is valid during such minority. Such is the conclusion of the New York courts. Gilman v. Reddington, 24 N. Y. 9; Robison v. Robison, 5 Lans. 165; Simpson v. English, 4 Thomp. & C. (N. Y. Sup. Ct.), 80. The same rule was maintained in the English cases cited.
But in case all of the grandchildren live until the youngest becomes of age, then, in the course of events, the oldest must become of age long prior to the youngest. Assuming that the daughters, or one of them, continue to live until the youngest grandchild becomes of age, then the question recurs, "What becomes of the accumulation in the interim? Must the several shares of all the grandchildren be paid over when the oldest becomes of age? Or is the share of each grandchild to be paid over to him on his becoming of age, and so on?
Under the statute, the devises of the remainder in fee of the lands to the grandchildren by the fourth clause of the will, must be construed to create in them estates in common, and not in joint tenancy. Sec. 2068, E. S.; Monarque v. Monargue, 8 Abb. N. C. 102. The same seems to be true
But what has been said in reference to illegal accumulations applies only to rents and profits of real estate, whether such as the testator owned at the time of his death, or such as have since been, or may hereafter be, purchased by the' executors. Our statutes do not extend to accumulations from personal property. Notwithstanding the real and personal property is given by the same clause of the will and upon the same trusts, yet they are severable, and the validity of the one does not depend upon that of the other. Knox v. Jones, 47 N. Y. 389.
Of course, the peculiar wording of the bequest to Henry in the second clause of the will has no reference to the rents
It is urged that by tbe peculiar wording of tbe second clause of tbe will tbe annuity therein given to Henry wifi not commence until “from and after tbe time when be shall attain tbe age of twenty-five years.” In construing tbis clause it should be remembered that by virtue of tbe fourth clause of tbe will as construed, Henry and tbe other grandchildren living on tbe death of tbe testator, at once took a vested interest, either legal or equitable, in tbe entire estate, subject to tbe provisions of tbe will. We have also seen that each became vested in point of right to a fractional share of any accumulation arising from tbe estate. Tbe words “ after tbe death of my said daughters,” in tbe fourth clause of tbe will, we have construed to relate solely to tbe time of enjoyment and complete possession and title. How are tbe similar words as to tbe annuity of Henry, in tbe second clause of tbe will, to be construed? It has been urged that an intention to discriminate against Henry and' in favor of tbe other grandchildren must be inferred from tbe circumstance that Henry was to receive and bad re- ■ ceived $15,000 from a trust fund in tbe bands of bis grandmother ; but that provision was made long before Henry was born or bis mother married, and was not made for Henry, but for bis mother, in common, as we assume, with tbe testator’s other daughters. Henry only got it by virtue of bis mother’s death. Had either of tbe other daughters died, leaving but one child, such child would, it is presumed, have inherited from its mother tbe same amount.
It does not appear to us that tbe circumstance of Henry
In so far as the conclusions of law of the trial court are not inconsistent with any portion of this opinion, they are to be regarded as approved. ' The costs and disbursements of all parties in this court are payable out of the estate. The
By the Oourt.— Tbe judgment of tbe county court is reversed on both appeals, and tbe cause is remanded witb directions to enter judgment in accordance witb this opinion.
A motion for a rebearing was denied September 22,1885; and tbe following opinion was thereafter filed:
Rehearing
In behalf of tbe plaintiffs a motion is made, ostensibly for a rehearing, but in reality to have tbe opinion filed made more definite and certain. Tbe failure of expression and lack of precision was entirely tbe fault of tbe writer, and was such as to justify tbe motion. Tbe only extenuating circumstance was an over-absorption in tbe weightier matters of the law involved therein.
1. By sanctioning the conclusions of law of tbe trial court, not inconsistent witb any portion of the opinion filed, it is claimed that we sanctioned tbe conclusions that all expenses, disbursements, taxes, insurance, repairs, and tbe specific shares of tbe net income bequeathed, should “ be paid and discharged exclusively witb and out of tbe net income of tbe real estate of which the testator died seized, so far as such income will pay tbe same; and only in case tbe income of such real estate shall be 'Insufficient therefor, and then only to tbe .extent of such deficiency, ought any part of such expenses or disbursements be paid out of tbe income of tbe personal estate; . . . [that] tbe whole income of tbe personal estate, . . . or so much thereof as shall not be required to cover and pay such deficiency, . . . should ... be loaned out or invested from time to time, . . . and kept so loaned or invested,” etc.
Neither this court nor tbe writer hereof bad any intention of so exonerating tbe personal- estate or tbe income
2. The learned counsel, in support of the motion, seems to think that the opinion filed is open to the construction that each of the several grandchildren born or to be born after the testator’s death, became, or will become immediately upon his birth, entitled in point of right to an equal share with all the other grandchildren in all prior accumulations of rents and profits accruing after the date of the testator’s death, and down to the time of his birth, as well as in all accumulations accruing subsequent to his birth, until he shall arrive at the age of twenty-one years, when he may claim payment of his share in full. Such was not the intention of the writer. To so construe the opinion would render a considerable portion of it superfluous, and certain portions very inconsistent, if not in direct conflict with other portions. This misapprehension may be partly in consequence of the opinion dealing mainly with the principles of law which were supposed to control the construction of the will, rather than the details of administration under the will when construed. But the opinion in this respect should be more definite and certain, and a few words and expressions modified. The opinion filed in effect states' the rule that immediately upon the death of the testator the grandchildren then in existence took a vested interest to the remainder in fee of the real estate, and an equitable right to the residue of the personal estate, but so as to open and let in any grandchildren subsequently coming into ex-
Undoubtedly, the general scheme of the will as to the accumulations of net income, if it could be carried out, would require the equitable right to them to be regarded as vested in the grandchildren living at the death of the testator, subject to open and let in grandchildren born thereafter during the lives of the daughters on equal terms with the others, and then on the death of both of the daughters be distributed as a part of the residue and remainder of the estate under the fourth clause of the will, the same as in case, of the corpus of the estate. But the statutes against accumulations have frustrated, and, to a certain extent, nullified, the scheme of the will in that respect. Hence the opinion filed, in effect, declared that as to the grandchildren in being at the time of the testator’s death accumulations might commence at that time, but could only continue during their respective minorities; but as to any grandchildren thereafter born during the- lives of the daughters, the accumulations could only commence after they were respectively born, and then only continue during their respective minorities. These things being so, and' each grandchild taking a vested right distributively as tenants in common with the other grandchildren living at the time, and not as a joint tenant, it follows that the right of such after-born grandchild to accumulations is confined to such as accrue after his birth. Such after-born grandchild can have no right to prior accumulations, not because it is contrary to
3. As stated in tbe opinion filed: “ Tbe fourth clause of tbe will is to tbe effect that after tbe death of tbe testator’s daughters be gave, devised, and bequeathed all tbe residue and remainder of bis property, real and personal, to bis surviving grandchildren, a/nd to the legal issue of emy deceased grandchild or grandchildren, by way of representation •of such deceased grandchild or grandchildren, a/nd to their heirs and assigns, forever, in equal parts.” “ Any deceased grandchild or grandchildren,” as here used, manifestly means such as may die during tbe life of one or both of tbe daughters. And “ tbe legal issue of any ” such “ deceased grandchild or grandchildren ” who may survive both of tbe daughters, as well as tbe “ surviving grandchildren,” are to share in “ tbe residue and remainder ” of tbe estate. In •other words, “ all tbe residue and remainder ” of the estate, under that clause of tbe will, was, upon tbe death of the daughters, given, devised, and bequeathed by tbe testator, not to bis “ surviving grandchildren ” alone, but to them “ and to tbe legal issue of any deceased grandchild or grandchildren,” etc. That is to say, tbe word “ surviving,” as there used, expressly includes, not only such of tbe “ grandchildren ” as survive both of tbe daughters, but also such of “ tbe legal issue of any deceased grandchild or grandchildren” as survive both of tbe daughters. Tbe word “ surviving,” or survivor or survivors, is often used in this broad, comprehensive sense as including “ others,” as well as a particular class. Wilmot v. Wilmot, 8 Ves. Jr. 10; Cole
4. But as the “residue and remainder” of the estate is not to be distributed until the death of both of the daughters, and then only to such grandchildren, and to such of the legal issue of any deceased grandchild or grandchildren, as survwe both of the daughters, it-is manifest that the share of any grandchild who may die without legal issue during the lives of the daughters must go into and become a part of such residue and remainder, and then finally be distributed to such survivors. . The same is true with respect to such of the legal issue of any deceased grandchild as may die without issue during the lives of the daughters. Doe v. Wainewright, 5 Term R. 427; Crowder v. Stone, 3 Russ. 217; Smith v. Osborne, 6 H. L. Cas. 375; Atkinson v. Barton, 3 De Gex, F. & J. 339; Atkinson v. Holtby, 10 H. L. Cas. 313; In re Tharp’s Estate, 1 De Gex, J. & S. 453; Hurry v. Morgan, L. R. 3 Eq. Cas. 152; Badger v. Gregory, L. R. 8 Eq. Cas. 78; Harris v. Berry, 7 Bush, 113; Minot v. Taylor, 129 Mass. 160; Hawkins v. Hamerton, 16 Sim. 416; Eyre v. Marsden, 4 Mylne & C. 231; In re Arnold's Trusts, L. R. 10 Eq. Cas. 252; In re Palmer's Settlement Trusts, L. R. 19 Eq. 320; Cross v. Maltby, 20 Eq. Cas. 378; S. C. 15 Eng. (Moak), 384. Such
5. Of course, there is a bare possibility that no grandchild, nor any legal issue of any deceased grandchild, will survive both of the daughters, in which event “ the residue and remainder ” could not go to survivors under the fourth clause of the will for want of a taker, and hence such “ residue and remainder” would, in that contingency,necessarily go, under the statutes, to the testator’s daughters as his heirs at law. Rut that mere possibility does not frustrate the scheme of the will. The statute expressly provides that “no future estate, otherwise valid, shall be void on the ground of the probability or improbability of the contingency on which it is limited to take effect.” Sec. 2050, R. S. 'Whether it ever takes place or not can only be demonstrated by lapse of time.
6. As to whether any grandchild can dispose of his interest in the éstate or any portion of it, prior to his coming into full enjoyment on the death of both of the daughters, that is a question which can only be properly considered when it shall arise.
7. As to the specific bequest to Henry, we have no desire to add anything to what is contained in the opinion on file.
By the Court.— The motion for a rehearing is denied.