1 Bradf. 154 | N.Y. Sur. Ct. | 1850
The Testator by the fourth, fifth, and seventh articles of his will, as modified by the codicil, gave his wife an -annuity of six hundred dollars, together with the use of his furniture, and of the leasehold premises, No. 70 -Murray Street, in the city of New-Yprk, for her life ;
Having made these dispositions, the testator then provided as follows:
“ Tenth,. The remaining net income of my estate, real and personal, after paying and discharging the annuities aforesaid, I give, devise, and bequeath unto my said children, Abraham, John, Ann Catharine, and William, until my daughtér Maria L. shall arrive at lawful age, equally, share and share alike ; and from that time until the dmision of my personal estate shall take place, as hereinafter directed, I give and bequeath the whole income of my estate, real and personal, after paying the annuity and interest to my said wife, and the annuity to my said niece, as aforesaid, unto my said five children equally, share and share alike.
“ Eleventh. Hpon my said daughter Maria L. arriving of lawful age, if my said wife be then dead, if not then, upon the decease of my said wife, I give and bequeath the whole of my personal estate, remaining after satisfying the provisions of this my will, unto my said five children, equally, share and share alike, forever.
“ But my real estate from thenceforth, I dispose of in manner following, to wit: the use and income thereof, I give, devise and bequeath, unto my said five children, equally, share and share alike, during their respective natural lives only; and the fee simple or absolute estate therein, I give, devise and bequeath unto the lawful issue of my said children respectively, to take in like manner, as such issue would take under our statute of descents, had I died intestate ; but in case there be no such lawful issue, then*166 I give, devise and bequeath, the fee simple or absolute estate in such share or portion, to the heirs at law of my said children so dying without lawful issue.
“ Twelfth. On the death of any of my said children before the disposal of my real estate, as provided for in the last article of this my will, shall take effect, leaving lawful issue, such issue, solely if one, collectively if more,— shall take in the mean time the share and portion of its parent, but if any of my children should so die, without leaving lawful issue, then the share or portion of such child, so dying without lawful issue, shall go to and be enjoyed by my surviving children, and the lawful issue of such of them as may be dead, or their representatives, until the disposal of my real estate shall take effect, as provided for in the said eleventh article.”
The testator nominated his wife and children executors, and gave to them all his real and personal estate, in trust, to carry into effect the provisions of his will.
His daughter, Maria Louisa, arrived at age in February, 1848 ; Ann Catharine died 9th June, 1848, without leaving issue, and the widow of the testator is still living.
Bichard C. Van Wyck, the husband of Ann Catharine, now insists, that the gift of the personal estate by the will, was vested in his deceased wife, and passed on her death to her representatives.
In considering this question, I propose, first, to examine the eleventh article of the will, which contains the bequest, by itself; and secondly, to ascertain how far the other portions of the will, explain, develope, or limit its terms and meaning.
I. The gift in the eleventh article is made “ upon” the death of the testator’s wife, a term simply noting a particular time dependent upon a specified event, and synonymous in such a relation with “ on,” and not with “ cum” and “ sif which, according to the construction of the Latin, are generally used in a form expressing contingency.
There is a large class' of cases, to which no exception
But where the time is not connected with an act to be done by, or an event to happen to the legatee, but on the contrary, with some independent occurrence, such as the death of another person,—that being a thing which must happen, and the time, therefore, being in that sense certain, there would seem to be nothing in the mere specification of such a future time, which in itself implies a condition. There is, however, authority adverse to this idea. In Smell vs. Dee, 2 Salk., 415, Lord Cowper held a gift to the two children of J. S., “ at the end, of ten yea/rs,'> after the testator’s decease, to fail by the death of the legatees, before the expiration of the ten years. The cases in Dyer and Ventris, which were referred to in support of this determination, relate to legacies given on conditions connected with the legatee, as marriage and attaining age, and consequently do not meet the point. Swinborne is also cited in aid of the same position, but so far from sustaining the case put, he expressly asserts, that a bequest to H. B., at a fixed time, as £100 at Easter, A. D. 1600, vests the legacy, notwithstanding the death of the legatee before the time. (Swim-borne, Pa/rt VII. § 23; Domat. I., Ill, Tit. 1, § 8, Art. 12.) How, I do not mean to say, that there is no other case except Smell vs. Dee, which decides that a legacy given at a certain time, lapses by the previous death of the
The subject of the effect of a simple limitation of time by the word “ when,'' was discussed in May vs. Wood, 3 Bro. C. C., 473, and the Master of the Rolls said, “ It has been contended that the word ‘ when’ must be synonymous to £ if,' and, consequently, that the legacy has never vested. Has the Court ever adopted such a construction ? On the contrary, all the cases for full half, a century upon pecuniary legacies, have determined that word, not as denoting a condition precedent, but only marking a period when the party shall have the full benefit of the gift; except something appears upon the face of the will, to show that his bounty should not take place unless the time actually arrived, and not where he has merely used the word when, for the sole purpose of postponing the time of payment.” The gift in that case was to the testator’s two daughters, “ to be equally divided between them, when they should arrive at twenty-four years of agebut Lord Alvanley said he decided the point without any reference to the words, “ to be equally divided,” and that “ all the cases establish this principle, that when the time is mentioned as referring to the legacy itself, unless it appears to have been fixed by the testator, as absolutely necessary to have arrived, before any part of his bounty can attach to the legatee, the legacy attaches immediately, and the time of payment is merely postponed, not being annexed to the substance of the gift.”
The position advanced in May vs. Wood, was criticised by Sir William Grant, in Hanson vs. Graham, 6 Vesey, 238, who on the other hand declared, that “ no case has determined that the word £ when,' as referred to a period of
I do not understand Sir William Grant, as laying down the broad doctrine, that the word “ whmf or any other specification of a future time, of necessity imparts a condition, but that it has that effect “ as referred to a period of life” of the legatee, or some other event, as “ when he shall attain 21,” or “when he shall marry.” All the citations he makes from the Civil Law, and the entire current of his argument are apposite only to that limited proposition, and there can be no doubt, that to such an extent, the doctrine is thoroughly grafted into the law of England. But that the mere specification of a future time in connection with the gift, as a legacy to A., on the death of B., in itself postpones the gift and makes it conditional, is altogether another question. Lord Loughborough, in Monkhouse vs. Holme, 1 Bro. C. C., 299, thus treats it: “I rather take the rule to be, that where the time is annexed not to the gift, but to the substance of the gift, there it lapses by the death of the legatee.” “ If the day is certain, it is vested, but where uncertain, the true question will be, whether it is in the nature of a condition; for if it is conditional, then in the very nature of the thing, the time
Sir James Wigram, in a recent case (Leeming vs. Sherratt, 2 Hare, 16), sustains the same course of reasoning. There, the testator gave all his personal estate to his executors in trust, “ to pay and divide the money arising therefrom, so soon as his youngest child should attorn, the age of t/went/y-one, unto and equally amongst his children, share and share alike.” The entire gift was in this direction to pay and divide, as soon as the youngest child reached 21; the event happened, the youngest child did attain that age, but John, one of the sons, died before; and yet the share directed to be paid to him, was held to pass to his representatives. In arriving at this result, the Vice-Chancellor, alluding to the cases in which it had been declared, that where a legacy has been given at a future time, the legatee can claim nothing, unless he is living at that time, said,—“ that the Court has in many cases expressed itself, very nearly in this manner, I do not deny, but I am satisfied I should be misapplying the rule intended to be expressed by the Court in such cases, if I were to hold, that John’s share of the residue was not transmissible to his representatives, only because he died before the testator’s youngest child attained twenty-one.”- “ I have examined most of the reported cases upon the sub
I feel inclined, therefore, to hold on this review of the authorities, that the gift to the testator’s children, by the 11th article, on the youngest daughter attaining age, and on the death of the widow, was not necessarily suspended until the occurrence of those events, but regard may be had to other circumstances to ascertain the intention of the testator.
It is certainly a sound position, that as a general rule, the testator is to be supposed as intending to vest the legacies at his death, and there should be plain indications of a different design to take any particular case out of the rule. This primary presumption is- only to be defeated by a clear intention to defer the vesting, and where the meaning is doubtful or ambiguous, the Court will lean against the exception sought to be established. (Elwim vs. Elwin, 8 Vesey, 557; Gaskell vs. Harman, 11 Vesey, 498.) In Vize vs. Stoney, 2 Drury and Walsh, 672, Lord Plunkett approves of the doctrine laid down by Williams, in his Treatise on the Law of Executors and Administrators, “ that the rule is always subservient to the intention of the testator, and that in cases of exceptions to the general rule, the intehtion of the testator, that the legacy shall not vest, must
Standing’ by itself, the 11th article admits of the following criticism.
1. The gift contained in it is to the testator’s “said five children,” nonvmaUm (they having previously been named), “ equally, share and share alike, forever.” It created a tenancy in common, and by construction of law, there is no survivorship, as in case of a joint-tenancy.
2. The gift is not to the children, or such as should be living at the time of the division, and there is consequently no express clause of survivorship.
3. On the decease of any of the children before the death of the widow, &c., there is no limitation of his or her share over to issue, so that a child dying, leaving issue, the issue would not take, but the share would lapse.
This circumstance is not controlling, otherwise the absence of a clause of substitution would in aE cases prevent a failure of the legacy, an idea wholly untenable. But the want of a limitation to the issue of a child, a legatee over age, where there is no provision for survivorship, affords a strong presumption, the testator intended his chEdren to take vested interests. “ If the wiE,” says the Vice Chancellor in the case already cited (2 Hare, 22), “had not contained the clause of substitution, and one or more of the testator’s children had died, leaving lawful issue before the youngest had attained twenty-one, the argument in favor of the legacy being transmissible, would have been irresistible.”
4. The bequest in the 11th article is of the whole personal estate “ remcmvmg,” after satisfying the other provisions of the will, and being thus in essence a disposition of the residue, if any share lapses, the testator as to it, has died intestate.
In Leake vs. Robinson, 2 Meriv., 386, Sir ¥m. Grant concedes that “ there is certainly a strong disposition in the Court to construe á residuary clause so as to prevent
The result is, therefore, that if we regard the time pointed out for the distribution of the capital of the personal estate in the 11th article, as annexed to the substance of the gift, we ascribe to the testator the intent not to give any of his children, most of whom were then advanced in life, any vested interest,—he at the same time mating no provision for survivorship, or for transmission to issue in case any of them should die before the period of division, so that in such a contingency, intestacy is the direct consequence. Such a construction should not be favored, and I think if the case stood on the 11th article alone, I should be bound to consider the, bequests as vested.
II. I will now inquire how far this conclusion is shaken or confirmed by the other portions of the will.
1. The most explicit reference to the disposition of the personalty by the 11th article, is contained in the 10th article, where it is spoken of as the “ division ” of the personal estate, a term rather applicable to payment and distribution, than to a future gift. Since the case of Ma/y vs. Wood, the word “ divide ” has been esteemed in connection with a future period, as indicating a time fixed for payment—for the enjoyment of the absolute possession, and not as operating to postpone the gift. The expression is also in strong contrast with that applied by the testator to his real estate. He speaks of the “ disposal” of his real estate, and the “ division” of his personal.
3. After paying the annuities, the entire income of the estate was given to his children. There is no principle better recognized, than that the gift of the intermediate interest, previous to the time appointed for the receipt of the capital, shows that the vesting of the principal was not intended to be postponed. . Here the testator gives the complete enjoyment and possession of his estate to his children, in subservience only to the postponement of its division and absolute right of property, until the majority of his youngest daughter, and the decease of his wife, for whom he had made special provision.
4. When a fund is bequeathed in fractional interests in succession, at periods which must arrive, the interests of the first and subsequent takers will vest together uno unstcmii, on the death of the testator. Bloodgood,- the testator in this case, disposes of his whole estate, the entire income to the death of his wife, and on her decease, and the majority of his youngest daughter, the entire principal. This created in substance an intermediate vested estate in the income, with a remainder in absolute possession of the principal on the happening of those events. If the income had been given to others, as for example, to the wife for life, and then on her death, the principal to the
In Blamire vs. Geldart, 16 Vesey, 314, the testator gave his whole property to his wife, and “ at Tier decease,” £200 to George Pringle. Pringle died before the wife, and Sir Win. Grant held the legacy vested, saying that “ the will, no matter in what order, divides the fund between these two persons, giving to one the interest for life, and to the other, the capital at her decease. In effect and substance, Pringle took a remainder which vested immediately upon the testator’s death, and was not defeated by his own death in the life-time of the wife.”
This rule applies equally, whether the interest or the fund itself be given to the first taker for a certain period, except that where the interest alone is bequeathed in the first instance, the remainder will not vest during the continuance of the particular estate, if.the context of the will clearly shows such was the intention. (1 Bro. C. C., 298; see also Barnes vs. Allen, 1 Id., 181; Roebuck vs. Dean, 4 Id., 403.) In Monkhouse vs. Holme, the interest was given to the testator’s wife for life, and “from and after her death,” the principal went over. In The Attorney General vs. Crispin, 1 Bro. C. C., 386, the bequest was £50, “ after ” the death of certain annuitants, to each of the children of D. R. In Benyon vs. Maddison, 2 Bro. C. C., 75, the direction was to pay the interest to H. L. for life, and “ after her deathf the testator “ then ” gave to five persons £100 each. In Scurfield vs. Howes, 3 Bro. C. C., 90, the interest of £500 was given to S. for life, and “ after ” her death, the principal to her son and daughter. In Cousins vs. Schroder, 4 Simon, 23, the testator directed £100 to be invested for his daughter for life, and after her death, the capital to be dimded among her chil
5. Taking the whole will of Mr. Bloodgood together, all his estate is bequeathed to trustees to give the income to his children, subject to the annuities and specific allowance to his daughter Maria L., until the latter attain 21; after which, the whole income is divided among his children equally, deducting the annuities, and on the death of his wife, the whole principal is to be shared among them. The division of the principal is postponed till the death of his wife, and the majority of his youngest daughter, and it is reasonable to inquire why ? The provision for the wife explains this, her interest terminated at her death, when an important charge on the estate ceased. So likewise as to the majority of the daughter Maria L., that was an event, previous to which the testator had given his other children more than their equal share of the income, and on the occurrence of which he restored to her a full proportion. Can any other reason be found in the will for the postponement of the division of the personalty? If the testator had in terms given the principal fund to such
TIT. It remains then to consider the effect of the provision contained in the 12th clause of the will, whether or not the limitation there provided, was intended to affect the share of any deceased legatee in the principal fund, and if so, whether the contingency mentioned in that article has arisen. Without dwelling at length upon this
How the real estate is disposed of in the 11th article, by giving, on the death of his wife, and the majority of Maria L., life estates to his five children, as tenants in common, with remainder to their issue. It happens, therefore, that the distribution of the personalty, and the division or disposal of the realty, are to take place at the same time, previous to which, the whole income of both estates is given to the children subject to the aforesaid charges. It might, therefore, be a question, whether the shares spoken of in the 12th article, relate to the whole income, or only to the income of the real estate. The latter idea is naturally suggested by the event specified; viz., “ on the death of any of my children before the disposal of my real estate.” This introduction is so suggestive of the subject matter of the article, that it is difficult to refrain from, limiting the subsequent directions to the real estate alone. It is replied, however, that the words, “ before the disposal of my real estate,” do not denote the subject of the article, but only the time and contingency on which it is to have effect, and that as the division of the personalty, and the disposal of the realty are to happen at the same moment, it is entirely indifferent in fixing the time, whether the testator marks it by referring to one event or the other. In either • event the time is fixed, which is all that was aimed at. I do not think it important, however, to dwell on this question. It was conceded by both sides on the argument, that nothing but i/ncome, whether of realty, or
It was urged, however, that inasmuch as by the 12th article, the interest of the children in the income was contingent, and would cease on death, and go over to issue, or to the survivors, therefore, the presumption afforded in favor of the principal vesting by the gift of the income, fell to the ground. This argument would be of greater weight if the gift of the income were the only ground for inferring a gift of the chief fund; but as already seen, it forms one of several circumstances looking to that result. But the gift of the income was not contingent,—it was absolute, and vested with a limitation over to issue, &c., on a contingency. (Parker vs. Golding, 13 Simon., 418; Kimberly vs. Tew, 4 Dru & Warren, 153.) How what is the consequence of this reasoning? The forecast and wisdom of the testator in looking forward to the possibility of the death of some of his children, leaving issue, before the division of his estate, his prudence in providing for the transmission of such deceased child’s income to issue, are brought forward to show that the testator did not intend to vest the principal in his children, and to establish a mere direction to divide on a future contingency. The testator’s provision for issue of a deceased child out of the income, is adduced to build up a proposition by which such issue on the death of them parent before the widow, would be wholly cut off from their parent’s share in the principal.
However this may be, I do not think it substantially affects the prominent features of the case, and in what
In Bruce vs. Charlton, 13 Simons, 65, it was unnecessary to decide the point, for the bequest was to certain persons, or “ such as should be living” at the end of a certain time. Nor were the cases of Chevaux vs. Aislabie, 13 Simons, 71; Young vs. Macintosh, Ibid, 445, analogous.