29 A. 838 | R.I. | 1894
This is a creditor's bill to obtain payment of a judgment in favor of the complainant against the respondent Westcott, out of a fund in the hands of the other respondents who are executors of the will of Penelope Westcott, deceased. The respondents have demurred to the bill.
The question raised for decision is whether the respondent Westcott, who was the husband of the testatrix, has any *686 right in the fund or the income of it, which he can enforce against the executors. If so, his creditor can also enforce it, and the bill can be sustained; otherwise it cannot. The question arises on the construction of the eighth clause of the will which is as follows: —
"Eighth. I further authorize and empower my said executors or executor or administrator for the time being in their or his discretion (if my husband should survive me and at any time be in circumstances requiring pecuniary assistance) to sell and convey or mortgage and if mortgaging to make such mortgage in any form customary in this State and with powers of sale the whole or any portion of my real estate and from the proceeds of such sale or mortgage from time to time as in their or his opinion occasion may require to apply for the benefit of my said husband such sums and in such manner as they may deem best.
"Nothing therein contained to interfere with his right by the courtesy in said estates.
"All the rest residue and remainder of my estate including the remaining proceeds of any sale or sales mortgage or mortgages which may be made hereunder and including under the head of my realty as herein referred to as also in this residuary clause all realty by me hereafter acquired I give devise and bequeath subject to the foregoing provisions to the Park Street Free Baptist Church in said Providence and its assigns to its and their use forever."
The real estate, including the respondent Westcott's right as tenant by the courtesy, has been sold under the power conferred on the executors, and they have in their hands of the proceeds of the sale a fund amounting to $2,000, a sum much larger than the complainant's judgment.
The complainant construes the word "his" before the word "opinion" in that part of the clause of the will under consideration relating to the application of the proceeds of sale to the benefit of the husband, as referring to "husband," and hence contends that the executors have no power or right to refuse to apply the proceeds for the benefit of the *687 husband, if "in his opinion occasion may require," and that the only discretion which the executors have is as to sums and manner of payment. We do not assent to this construction. We think that the word "his" in the connection mentioned refers, not to "husband," but to the words "executor or administrator." The clause is somewhat involved and obscured by the insertion in it in parenthesis of the condition on which the power of sale was to be exercised by the executors, to wit, the husband's survival of the testatrix and being in circumstances requiring pecuniary assistance, instead of its having been put at the beginning of the clause. If the condition be so placed and the clause be then read, eliminating the parenthesis, it will be evident that the construction we have suggested is the more natural. Such a construction, moreover, would prevent any clashing between the executors and the husband which might result from a divided discretion.
The clause does not give the whole nor any portion of the fund or its income to the respondent Westcott, but the whole is given to the Park Street Free Baptist Church, subject to the discretion of the executors, when in their opinion occasion may require, to apply from time to time for his benefit such sums and in such manner as they may deem best. We have no doubt it was the intention of the testatrix that the fund should be applied, if needed, for her husband's benefit, but she meant, too, that it should not be diverted from that use either by any act of his or of his creditors. She, therefore, wisely gave the fund in its entirety to the church, reserving no right in it to him, but subjecting it to be applied for his benefit in the discretion of the executors. That discretion is purely personal to the executors. They are the sole judges of the occasion that is the necessity or propriety of the application of the sums to be applied, and the manner of the application. They may pay the sums to the beneficiary personally, or expend them in the purchase of necessaries from others, or otherwise for his benefit. So long as they act in good faith, their exercise of the discretion or refusal to exercise it cannot be controlled by the court. The beneficiary, *688
therefore, took no right which he can enforce against the executors, and as he cannot, neither can his creditor; for the creditor can have no greater right to enforce action by the executors than the beneficiary himself has. In the celebrated case of Nichols v. Eaton,
The case at bar is clearly distinguishable from Tillinghast
v. Bradford,
We are of the opinion that the demurrer should be sustained and the bill dismissed.