61 Md. 575 | Md. | 1884
delivered the opinion of the Court.
The questions that we are called upon to decide in this case arise upon the construction of the will of the late Richard W. Tyson. The will was made in 1869, and the testator died in 1813. He left a widow, and a considerable family of children, several of the children being of tender age. The principal question raised is one in respect to the extent and nature of the provision made lor the widow of the deceased.
It is clear upon the most casual reading of the will that ■a certain and ample provision for his widow for her life was a leading and controlling object in the mind of the testator. This is made manifest hy the care which he has taken to provide the sources from which the income should ■arise, and the terms in which he has expressed his desire upon the subject. He bad an estate in his own right, and he had a power of appointment or disposition by will in respect of certain property held in trust for him under the will of his father. All this he dedicated primarily to the
By the first clause of the will, after payment of debts, &c., he devised and bequeathed to trustees, to hold during the natural life of his widow, all the rest and residue of his estate, real, personal and mixed, of which he might die possessed, or in any manner entitled to; “in trust, to' permit my said wife to possess, use, occupy and enjoy the same, and to receive the rents, issues and profits thereof, for and during her natural life; and from and after her death, then to all my children and their descendants then living, to be equally divided between themper stirpes, and not per capita.” The next clause of the will has reference to the power contained in his father’s will; and by this, clause he executed the power, and devised and directed, that at his death, the trustees under his father’s will should forthwith pay over and deliver up the estate subject to the operation of the power, to the trustees named in his own will, to whom he devised and bequeathed the same, in trust, to and for the following uses, intents and purposes, that is to say; “ First, in case the estate and property hereinbefore devised and bequeathed to the said trustees for the benefit of my wife shall, at the time of my death, fail or be insufficient to yield and produce her the clear yearly revenue or sum of six thousand dollars, (which I desire to ensure as a minimum income to her,) then to set apart and hold in like manner as aforesaid, in trust for her use, enjoyment and benefit, such an amount of property as may be requisite to make up the deficiency of revenue to said yearly sum of six thousand dollars for her during her natural life; and from and after her death, I will, devise and bequeath the said amount so set apart as aforesaid, unto all my children and their descendants then living, to be equally divided between them per stirpes, and not per capita. Secondly, after having made up such deficiency, or there being no such deficiency to he
The property embraced in the first clause of the will was, at the time of the death of the testator, and has ever since proven to be, wholly inadequate to produce the minimum income intended for the widow; and all the property together, as well that embraced by the first clause as that embraced by the second, has, in most of the years since the death of the testator, proved insufficient to produce the requisite amount of clear income to gratify the provision made for her. In this state of things, and in view of the uncertain and fluctuating nature of the income derivable from the property, there has been no particular portion of the estate acquired through the power in the will of the father of the testator, set apart as directed in the second clause of the will of the latter, to make up the deficiency of the income derivable from the property embraced in the first clause. All the property has been and is still held together by the trustees as a corpus to yield the income for the widow. And according to the auditor’s account, founded upon the report of the trustees, and ratified by the Court below, there have been but two years from 1873 to 1881 inclusive, in which the income from the entire property exceeded the clear minimum income allowed to Mrs. Tyson by the will. In the year 1875 there was a surplus of $660.92, and in 1881, a surplus of $2419.04. The aggregate amount of deficiency, during the same period, in the income to which Mrs. Tyson is entitled under the will, assuming that she is entitled to receive annually at least $6000, if the net income from the entire estate amounts to that much, is shown to
It may he very true, and indeed doubtless was the case, that the testator, at the time of making his will, or even at the time of his death, was under a false impression as to the amount of his property, and in regard to the amount of its future annual production. He evidently supposed that the estate at his disposal would enable him to provide a certain income for his wife, and that there would he a surplus for his children. But if we find from the terms of the will that his primary object was to secure a certain or minimum income to his widow, at all events and without restriction, the will must be construed with reference to that apparent intention.
Unlike many of the cases cited in argument, this is not the case of a gift of an annuity, in the strict sense and meaning of -the term, charged upon the estate of the testator generally, or a particular portion of it, or the rents, profits, or dividends of the estate, and where the annuity will be decreed to he paid in full, though it may require •the sale or conversion of the corpus of the estate, or the appropriation of the rents, profits, or dividends thereof, even beyond the life of the annuitant. Such were the cases cited of May vs. Bennett, 1 Russ. Ch. Cas., 370; Birch vs. Sherratt, L. R., 2 Ch. App., 644; Booth vs. Coulton, L. R., 5 Ch. App., 684; Gee vs. Mahood, 11 Ch. Div., 891, and same case affirmed on appeal, and reported as Carmichael vs. Gee, 5 App. Cas., 588. In such cases as those the gift of the annuity is hut a pecuniary legacy measured by the number of years that the annuitant may
The case nearest to the present in principle, that has been brought to our attention, is that of Baker vs. Baker, 6 Ho. L. Cas., 616. In that case, on the construction of the will, the Court held, that the widow was tenant for life only of the particular fund, as that was required to be held in its integrity during her life, and was given over intact after her death; therefore she could have no claim on the corpus of the fund for the deficiency of the income. There the direction to the trustees was to set apart such sum of money as would, when invested, “realize the clear annual income or sum of 200l,” with a direction, without any gift of annuity to the widow, “to pay to, or permit and suffer my said wife to receive and take such dividends, interest, or annual income, by two equal half yearly payments, for and during the term of her natural
There is another question raised in this case by exception to the auditor’s account, and that is as to the proper mode of charging the commission allowed to the trustees. "We are clearly of opinion, however, that that question was rightly determined by the auditor and the Court below. It is certainly the general practice to charge the commissions to he allowed to trustees, in cases like the present, upon the entire income that may be in the hands of the trustees for distribution, and then distribute the net balance to the parties entitled, according to the precedence of their rights or claims. If a party is entitled to he paid a certain amount in full, and the fund for distribution is sufficient to make that payment, after deduction of commissions and other proper expenses, he is entitled to receive his claim without reduction or abatement, unless it he under very special circumstances. Upon no other principle could an annuitant or a party entitled to a specific sum as a charge upon the proceeds of property, ever get the measure of his claim in full.
Concurring with the Court helow in the order appealed from, we shall affirm the order with costs.
Order affirmed, and cause remanded.