11 Paige Ch. 159 | New York Court of Chancery | 1844
The principal question for considera-tipn in this case is upon the construction of the words, shall marry and have a family. The word family may mean children, wife and children, blood relatives, or the members of the domestic circle, according to the connection in which the word is used. Thus in Barnes v. Patch, (8 Ves. 605,) where a residuary bequest of a contingent interest in the testator’s estate was directed, upon the happening of the contingency, to be equally divided between his' brother and sister’s families, Sir William Grant decided that the whole went to the children, to the exclusion of the brother of the testator, who was living at the time of the happening of the contingency. Here the context shows fhat, by the word family, the grantor must have meant children. For to entitle the trustees to increase the annuity from $700 to $1200, the petitioner is not only to get married but also to have a family. And getting married and having a family, in common parlance, means something more than having a wife and keeping house. Unless there is something in the context to give a different construction to such an expression, it.means to get married and to have children, or descendants, as the issue of such marriage. The trustee, therefore, is not authorized to increase the annuity to $1200, or to pay the petitioner any more than the sum first specified in the trust deed, until there shall ■be children born to him, either by this or some future marriage, unless the income of the fund should exceed the $700.
If the income should exceed that amount, the trust to accumulate it for the benefit of those who may be the heirs of the petitioner at the time of his death, is invalid pro tanto; and the surplus income will of course belong to the person creating the trust as an interest in his property not legally and effectually disposed of by the trust deed, or to the brother and sisters of the cestui que trust, as presumptively entitled to the next eventual estate. (1 R. S. 726, § 36, 37, 38, 40. Idem, 774, § 3, 4. Vail v. Vail, 4 Paige's Rep. 330.)
The petition must therefore be dismissed.
