Dove v. Johnson

A testator, leaving a son, three married daughters, and two unmarried daughters, by his will gave to his son one sixth of the residue of his personal estate; provided that, if one or more of his daughters should die before the probate of the will, leaving no issue, the share given to his son should be proportionally increased ; and “ the remaining five sixths (or other portion, whatever the same may be) of such residue ” he bequeathed to trustees in trust to pay the net income thereof, quarter-yearly or of tener, “ to all-my daughters in equal shares, and the issue of any deceased daughter shall take the mother’s share; ” and further provided that, “ after the decease of the survivor of my daughters,” the trust fund should he distributed to those persons “ who may then take the same as my heirs.” After the testator’s death and the probate of the will, one of his daughters died unmarried, leaving a will, by which she bequeathed the residue of her property to one of her sisters. Held, that no part of the principal of the trust fund was to be distributed until the death of the survivor of the testator’s daughters; that the direction to pay the income of “ the remaining five sixths (or other portion, whatever the same may be)” of the residue “to all my daughters in equal shares,” was a gift to the daughters as a class; and that, in the event which had happened, the surviving daughters took the whole income.

Bill nsr equity, by the trustees under the will of John Dove, deceased, to obtain the instructions of the court as to the construction of the eighth clause of his will, which was as follows: “ I bequeath to my son George one sixth part of all the residue of my personal estate. But if one or more of my daughters should die before probate of this will, leaving no issue, then the share or portion hereby given to George shall be proportionally increased. The remaining five sixths (or other portion, whatever the same may be) of such residue, I bequeath to my executors and trustees hereinafter named, and their heirs, in trust for the following purposes, to wit: to keep the same at all times safely invested, and to pay the income arising therefrom, quarter-yearly or oftener, at the election of said trustees, to all my daughters in equal shares, (having first deducted all expenses arising from the management of said trust,) and the issue of any deceased daughter shall take the mother’s share. After the decease of the survivor of my daughters, the trust fund created by this item shall be distributed to those persons who may then take the same as my heirs.” The other clauses of the will bearing upon the questions presented were as follows: “ Third. To those of my daughters living at my decease and remaining till then unmarried I bequeath the sum of seven thousand five hundred thirty dollars each, that being the sum which I gave to each of my married daughters at their marriage.” “ Fifth. I devise to my son George that portion of my land now enclosed within the boundary fence of his homestead. “ Sixth. I devise to those of my daughters who shall not have married at my decease all the residue of my real estate, to have and to hold the same to them and the survivor of them for their lives and during the life of such survivor, they and the survivor of them continuing unmarried. The marriage of any one of my daughters who take under this item shall terminate her interest and life estate under this devise. After the marriage or death of my surviving daughter taking under this item, the estate herein devised shall descend to those persons who may then be entitled to take the same as my heirs.* “Seventh. I bequeath to my unmarried daughters all the live stock, horses, carriages, tools, implements, fixtures, furniture, plate, library, and all other personal property of whatever name or nature pertaining to my homestead and used in connection therewith, to have and to hold the same in like manner, and upon the same terms and conditions, as they hold the real estate named in item sixth above.” By the tenth clause the plaintiffs were nominated executors and trustees of the will. It appeared from the bill and answers, on which, the case was reserved by O. Allen, J., for the consideration of the full court, that the said will was duly admitted to probate on December 18, 1876; that the plaintiffs were appointed trustees under the eighth clause of the will on July 2, 1877; that, at the time of the death of the testator and of the probate of his will, the only children, heirs at law, and next of kin of the testator were the plaintiffs George and Isabella, and the defendants Mary, Laura, Clara, and Helen C.; that Helen C. and Isabella were the only daughters then unmarried ; that Helen C., since the probate of the will of the testator, has died unmarried, leaving a will by which she bequeathed the residue of her estate to her sister Isabella. The questions presented were, whether, on the death of Helen C., the persons interested were entitled to an immediate distribution of the whole or of any part of the capital of the trust fund, and, if so, to whom and in what proportions such distribution should be made; and whether, on said death, it became the duty of the plaintiffs to pay the whole of the net income of the trust fund thereafter accruing to the four surviving daughters, or whether the share thereof, to wit, one fifth part, which until then had been paid to the said Helen, should in future be paid ,either to the executor of her will or to the plaintiff Isabella, as residuary legatee thereunder, or whether the said share of Helen should be divided among the four surviving daughters and the plaintiff George, and, if so, whether it should be divided in fifths or sixths, and whether said Isabella is entitled to two sixths or to one fifth of said share.