Middleton's Appeal

Chief Justice Merque

delivered the opinion of the court,

It has been ruled, that a gift of income, during the time for which it is given, is equivalent to a gift of the principal: France’s Appeal, 25 P. F. S. 220. It is, however, the intention of the testator expressed in his will, which furnishes the best guide in its construction. Regard must be had to the whole scheme of' the will, and its general intent, if it be lawful, must be adopted: Middlesworth v. Blackmore, 24 Id. 414; Schott’s Estate, 28 Id. 40 ; Reck’s Appeal, Id. 432. Technical rules of construction must not be so applied as to defeat the plain intent of the testator: Still v. Spear, 9 Wright 168 .

The appellant is the residuary devisee of Edward P. Middleton, under whose will this controversy arises. In addition to several specific legacies the testator bequeathed to each of his sisters, Hannah JNorcroSs and Martha O. Ware, and to his brother, John C. Middleton, the interest of ten thousand dollars, to be paid to each during the term of their respective lives. *95 The will provided that on the death of either sister, the said principal sum of $10,000 be equally divided among such of the children of said sister as may survive her : and after iris brother’s death the said interest be paid to his said brother’s wife during her life, and after the death of both, the interest to be paid to their daughter Susan during her natural life. lie appointed the executors of his will trustees of the estate.

Mrs. Ware having died, the contention now is, what sum are her surviving children entitled to receive 1

They are not satisfied to accept the $10,000, hut claim a larger sum. They base that claim mostly on facts which occurred after the death of the testator. It appears that when the executors filed their account, there was awarded to them as trustees the sum of $31,000 “ to secure annuities.” It is now claimed that this sum was designed as a fund to produce the interest to he paid to tire legatees named (although technically not annuities), and an annuity of $100 per annum given to an uncle of the testator. If such was the intent, the sum in excess of $30,000 was not sufficient to produce the $100 annuity.

The whole sum thus transferred to the trustees was undoubtedly to be used by them in execution of the trust imposed by the will. It was invested by them in city sixes, which have since increased in value. The children of Mrs. Ware are the appellees here. They contend their right is not restricted to the sum of $10,000 but that they are entitled to the present value of bonds purchased with $10,000. This presents the question in the case. They claim that the gift of the interest on $10,000 implied a direction to invest that sum, and the trustees having invested in the securities named, they represented and took the place of the original fund for all purposes, and therefore the appellees are entitled to take the same or their enhanced value, although it exceeds $10,000. Conceding it became the duty of the trustees to pay the interest due to the legatees out of the interest realized on the city bonds: yet it by no means follows that the sum bequeathed to the appellees was thereby increased.

Referring to the language of the will, the intent of the testator appears very clearly. Mrs. Ware uTas given the interest on $10,000 only. On her death “ the said principal sum of $10,000 ” was to be divided among her surviving children— the mother was to receive the interest on that sum only. Her children were to receive that principal sum only. So far as she and her children were concerned, neither had any rights in any other portion of his estate. The testator distinctly marked the line beyond which they could not go. He did not bar-mark any certain money whereby it could bo distinguished from any other like sum. He did not direct that the sum *96 should be invested separately by liis trustees. After the payment of specific legacies not postponed, the residue of bis estate was to remain in their hands for the benefit of all bis beneficiaries, " The specific sum thereafter to be paid to any of them was not to be enlarged to the injury of the residuary legatee. The children of her sister and the child of her brother occupied as high ground as the children of Mrs. Ware. Whenever the grand children became entitled to the enjoyment of the bounty of the testator, the precise sum was fixed by the will.

If the trustees, in pursuance of-an order of court, invested in securities which proved worthless, it may be conceded that they would not have been liable for the loss; yet, that fact does not control the present case.

Although the trustees may have been protected in such case, yet in case of either loss or gain in that investment, the appellees are not entitled to receive more than the sum named by the testator. The investment of $10,000 in the city bonds did not make the appellees the absolute owners of those bonds. They were merely held to secure either in whole or in part, the sum which was to become due to them on the death of their mother.

We think the intention of the testator is too clearly expressed, to sustain the appellee’s claim for more than the $10,000 and that the learned judge erred in decreeing otherwise. The appellees are entitled to that sum less the collateral inheritance tax, and the appellant is entitled to the residue of the fund produced by sale of the securities.

Decree reversed at the costs of the appellees and a procedendo awarded with instructions to decree distribution in accordance with this opinion.