Stephens' Executors v. Milnor

The Chancellor.

The first question submitted is, whether the legacy to John H. 8. Washington, given by the third clause of the will, and increased in amount by the codicil, did not become vested in the legatee on the death of the testator.

The gift is immediate; the payment is deferred until the donee shall have attained to the ago of twenty-one years. No interest is to be allowed on the legacy until after the legatee shall have attained to the age of six years, and from that time, and until he shall attain to the age of twenty-one years, the executors and trustees are authorized to pay so much of the net interest that may from time to time accrue from the legacy, for the comfortable support, maintenance and education of the legatee, and to invest the balance of the net interest, if any, for accumulation, until he shall arrive at twenty-one, at which time the principal sum and its accumulations are to be paid over to him.

The legacy vested, or as it is sometimes expressed, vested equitably, in the legatee on the death of the testator. But it is liable to be devested by his death, before he shall have *372 attained to the age of twenty-one years. Ward on Legacies 182. The will provides, that in case of his death “ before he shall attain to twenty-one years of age, or before he shall become vested with said legacy,” the legacy with the accumulations therefrom, if any, shall “ revert ” to the testator’s estate, and be distributed as in the will declared, with respect to the residue and remainder of the estate.

By the codicil the amount of the legacy is increased to $6000, and in case of the legatee’s death before attaining to twenty-one years of age, the legacy is to go to the other children of the testator’s daughter Eleanor, if any shall survive his grandson, the legatee, and “ the interest is to be paid for their benefit, and finally the principal, in the same manner, and for the same purposes, with like determination thei’efor, as is provided respecting the legacy of $5000,” in the third section of the will.

I he legacy to John H. S. Washington is to be devested, in case he shall not attain his majority, and in that case it is to go to the other children of his mother, or any of them who shall then be living, and in default of any such children, then to go into the residuum of the estate.

The words “ or before he shall become vested with said legacy,” are clearly but the expression of the testator’s understanding and intention, that the legacy should not vest absolutely, until the legatee should have attained the age of twenty-one years. But these words, whatever signification be imputed'to them, are of no importance. The legacy vested at the death of the testator. • The legatee is still alive, and therefore the contingency of his death, before the vesting of the legacy, is past. If .they refer to the absolute indefeasible vesting of the legacy, they are redundant merely.

The gifts to All Saints Church are annuities for years. Such is the form of the bequests, and so they are termed by the testator, and he intended that they should be paid out of the income, and they are to be so paid, accordingly.

The bequest to the Newark Orphan Asylum is to be paid out of the estate. That is not an annuity, but a bequest of *373 a sum of money to be paid in instalments, running through five years.

The testator intended to provide for the payment of assessments for municipal improvements upon the real property in the residuum of his estate. He specifies assessments in addition to, and distinct from taxes. HU language is, “ taxes, repairs, assessments and insurance.” He resided in the city of Newark, where most of his real property was located, and was familiar with its charter, and with the burdens to which the real estate in its limits was liable. Besides, his language, introductory to that specification, is “ expenses incident to said estates,” in which, assessments for municipal improvements are fairly included.

In a recent case in the Court of Errors and Appeals it was held that a provision contained in a society’s charter, that their property should not be “subject to taxes or assessments,” should not be understood to refer exclusively to the ordinary public taxes, but to include local assessments for municipal purposes. City of Newark v. Protestant Foster Home Society. March Term, 1873.

Under the head of repairs should be included new roofing, new plumbing, and whatever is reasonably necessary to keep up the house.

Grading and flagging the sidewalks, and grading and paving the streets in front of the premises, and fencing the lots, all these, though they are improvements of a permanent character, and go to the benefit of the estate and of those in remainder, are expenses incident to the real estate, and are included in the direction to pay the expenses incident to the estates, out of the rents, issues, income, and profits thereof.

Additions to the houses, and adaptations of premises to new uses are not fairly within the direction, and should be paid for out of the estate and not out of the income.

In the direction in the seventeenth section, to pay one-third of the net rents, issues, income, and profits to the testator’s daughter, Susan E. Milnor, during her natural life, and after her death to her children, until the majority of the *374 youngest, the language of the will is “ to her children or the legally constituted guardian of said children, or to any of such as shall, at that time, be minors.”

It appears to me that the testator meant to direct that payment be made to the children or their legally constituted guardian, or the legally constituted guardian of any of such as shall be minors. And this applies to the like language subsequently used in the same section, in the direction to pay one-rthird to his daughter Eleanor during her life, and after her death to her children until the majority of the youngest.

The will gives the remaining third to the testator’s grandchildren, Mary Henrietta Smith, and William C. Smith, each to have equal parts thereof, during their respective natural lives, and provides that, “ in case of the death of either of them without issue surviving, then the survivor of them to have the income of the w hole of said one-third part during his or her natural life.” William died in the testator’s lifetime, and before the making of the codicil, and without isssue, leaving Mary Henrietta surviving. The testator makes no reference, in the codicil, to the fact of William’s death, nor does he make any provision in regard to William’s share of this third.

The making of the codicil was a republication of the will. The former expressly confirms the latter, except as altered thereby.

I think there can be no doubt that, although William died in the testator’s lifetime, there was no lapse, but the entire third goes to his sister,. Mary Henrietta, who takes William’s share, as survivor, under this provision of the will. There can be no doubt of the testator’s intention. He meant that these two grandchildren should have the benefit of the third of the income of the residue, in their deceased mother’s stead. And it is very evident that he intended, that in case of the death of either of them at any time, the other should have the whole. On adjudged cases and well settled principle, such is the construction. Willing v. Paine, 3 P. W. *375 113; Smith v. Pybus, 9 Ves. 566; Norris v. Beyea, 13 N. Y. 273 ; Taylor v. Wendell, 4 Bradf. Sur. R. 324 ; 2 Redf. on Wills 597; Roper on Legacies 489 ; Ward on Legacies 182.

It appears that it would be greatly to the interest of the estate that certain portions of the real property should be sold. These portions are of two classes: one wholly unproductive and very burdensome to the estate by reason of very heavy assessments for municipal improvements; the other, from its character, being wooden tenement houses in different parts of Newark, constantly requiring repairs and of uncertain income, and expensive in collection, altogether undesirable and unprofitable as an investment to be managed by trustees, especially during a long period of time. The objectionable character of these two classes of property is shown by the fact that out of a gross income of $54,244.74 from the residuary estate for the year 1871, §27,193.03 were expended for repairs, taxes, assessments, &c., in that year, leaving a balance of net income of only §27,051.71, one-half of the gross income being consumed in incidental expenses. And for the next year, 1872, out of a gross income of $63,198.92, for like expenses §2-5,881.29 were required, leaving a balance of $87,317.03.

The testator by the fifteenth section of the will, directed his executors and trustees, after payment of his debts, to set apart so much of his real and personal estate as should remain, and as should be sufficient to constitute a fund, the income of which should be appropriated to the payment of the annuities; the balance of the personal estate, if any, then to be applied to the payment of the specific legacies; and in case the balance of personal estate should be insufficient to pay the legacies, he devised to his executors and trustees, in trust; so much of his real estate as might be necessary for that purpose, and ordered and directed them to sell and convey it lor that purpose, excepting the parts of his real estate specifically devised. The balance of personal estate has proved ample for the payment of those legacies.

By the nineteenth section, he authorizes and empowers his *376 executors and trustees, and the survivors and survivor of them, to sell and convey, any part of his real estate, (except such parts as he has expressed a wish to have reserved from, present sale,) for the purpose of raising money, if necessary, to pay the legacies and annuities, or any part thereof, if it should be thought advisable so to do, in preference to raising-money by a disposal of personal securities, considered safe investments for the general purposes of his estate. The-contingency here contemplated has not arisen, and will not arise, for the reason before given in the same connection. By the same section, he confers the power of sale, with regard to the whole of his real estate, except his homestead in Middle-town, if it shall be deemed necessary, in order to make a final settlement and distribution of his estate among those to be finally benefited thereby. This power is referred to the final distribution of his estate, and is confined thereto.

By the twentieth section, he directs that his estate, so far as practicable, may be settled up and funded within five-years from his decease. To fund, is ordinarily understood, in such a connection, to signify to capitalize with a view to-the production of interest.

I think the testator contemplated a sale of at least part of his real estate under this direction. In the very next, the twenty-first section of the will, he says: “ When it becomes necessary, or shall be deemed expedient, by my executors and trustees, to dispose of real or personal estate, I advise and direct that the following (specifying certain real estate and securities) shall be first sold.” If it be conceded that the occasions, whether of necessity or expediency, here alluded to, are to be controlled by the preceding directions and limitations of the will, in connection with the grant of power to sell, contained in the fifteenth, nineteenth, and twenty-first sections, the power of sale as to this property directed to be first sold, is given by the codicil, which, in its seventh section, speaks on the subject as follows : “ In the twenty-first section of my said will, I have designated certain portions of my real and personal estate to be first sold; my *377 will and wish now is, that my said executors and trustees shall exercise a sound discretion as to the propriety of selling said real estate and stocks, upon conference with parties disinterested therein, and advise that no sales therof be made unless the exigencies of my estate shall require it to make provision for the legacies in said will bequeathed.” This is not a mere repetition of his direction contained in the twenty-first section of the will. It is more. Referring to that direction, ho indicates a change of intention' — “ my will and wish non: is;” and commits it to the sound discretion of his executors and trustees to sell the designated real estate and stocks, upon conference with disinterested parties, (of course as to the expediency of disposing of the property,) and advises (merely) against sale unless the exigencies of the estate require it for the payment of the legacies.

It appears to me, from this section of the codicil, to have been clearly his intention to clothe his executors and trustees with discretionary power to sell the property, designated in the twenty-first section of the will as to be first sold, and they are at liberty to sell the property accordingly.

The power given in the nineteenth section of the will, to change the investments of the personal estate, from time to time, in such manner as may he thought most advantageous for the estate, should be exercised in regard to all unproductive or depreciating securities, and it is the duty of the executors and trustees to dispose of the stock of the Stephens and Condit Transportation Company, which is constantly depreciating and wholly unproductive, at less than par, if the interest of the estate, in their judgment, demands.

There appears to be no good reason why the income which, in the fifth section of the codicil, the testator directs to be paid half-yearly, should not, under the present circumstances, be paid in quarter-yearly payments. It will be so ordered.