Van Blarcom v. Dager

Where the income of all of a testator’s property was given to his wife, for life, with a gift over of the principal at her death.—Held, (1) That the premium received by her on certain gold coin belonging to testator’s estate, was part of the corpus, and not income to which she, as life tenant, was entitled. (2) That the interest receivable by her must be computed from the date of testator’s death. Note.—If a legacy be given in a foreign country, and in a foreign coin, but payable in England, the rule is to compute the amount there, as converted into sterling, without any allowance for exchange or the expense of remittance. Cockerell v. Barber, 16 Ves. 461; Holmes v. Holmes, 1 Buss. & Myl. 660; Saunders v. Brake, 2 Aik. 466; Otis v. Coffin, 7 Gray 511; Bowditch v. Soltylc, 99 Mass. 136; Stewart v. Chambers, 2 Sandf. Ch. 282. See Campbell v. Graham, 1 Buss. & Myl. 453, 2 Cl. & Fin. 429; Scott v. Bevan, 2 Barn. & Ad.’78; Lansdowne v. Lansdowne, 2 Bligh 60; 1 Bop. on Leg. *856 ; Blanchard v. Equitable Co., 12 Allen 386; Scofield v. Bay, 20 Johns. 102 ; Wilson v. Morgan, % Boberts. 58; Bobinson v. Hall, 28 How. Pr. 342; Grant v. Healey, 3 Sumn. 523; Baker's Appeal, 59 Pa. St. SIS; Carter v. Swift, 1 Low. 398; Boll v. Earle, 65 Barb. 298; Tufts v. Plymouth Co., 14 Allen 407;, Me Clarín v. Nesbitt, 2 Nott. & M. 519; Cary v. Courtenay, 103 Mass. 316; Bohn v. Broadhagen, 2 Cm. (Ohio) 2. In Cole v. Cole, 1 Dev. 1/60, a bequest of a slave and her increase, passed only the increase born after testator’s death. See Holmes v. Mitchell, 4 Md. Ch. 268; Perry on Trusts \ 546. In Brewster v. McCall, 15 Conn. 274, a testator gave to his wife one-third of the use of a certain farm, during her natural life, “ together with the stock of said farm.”—Held, that she took the stock absolutely. See Doveren v. Lamprey, 22 N. II. 1¡34; Moultrie v. Hunt, 10 Am. Law Peg. 165 ; Dole v. Johnson, 3 Allen 364- An unconditional bequest of the dividends of certain stock, is a bequest of the stock itself. Collier v. Collier, 3 Ohio 8l. 869. In Hartley v. Allen, 4 Jur. (IV. 8.) 500, £17,000, profit derived by a corporation from the sale of new shares of stock issued by the company, was ordered to be divided ratably among the stockholders,— Held, that a life tenant of certain of the old shares was not entitled to any part thereof. In Brander v. Brander, 4 Vos. 800, a life tenant was held to be not entitled to a dividend of the surplus capital or reserved profit of a bank, ordered by the corporation to be divided ratably among the stockholders. In Hooper v. Possiter, 13 Price 774, under a bequest of the interest, dividends, proceeds and profits of a sum of stock, to S. F. for life, and of the stock itself, at her death, to E. A. F., a bonus of twenty-five per cent, derived from an increase of the stock of the company, was held to go to E. A. F., the remainderman. In Maclaren v. Stainton, 3 DeG. F. & J. SOS, a large deficiency due from a testator to a corporation was compromised by his executors, and, after its payment, the company declared a bonus thereof, on its shares,—Held, that the whole of such bonus on the shares that constituted the residuary estate, belonged to the tenants for life, as income. Also, Nicholson v. Nicholson, 9 W. Pep. 676. In Simpson v. Moore, 30 Barb. 637, after a trust to executors to invest and pay the income of one-sixth of testator’s estate to his widow for life, and then over, an investment was made in bank stock. The bank re-organized and declared a dividend of eighteen per cent., leaving it optional with the stockholders to take stock in the new bank with such dividend, or to take it in cash. The trustee took the stock.—Held, that so much of the eighteen per cent, as represented the old capital, belonged to the remainder. In Woodruff’s Case, 1 Tuck. 58, after a gift of a life estate in a residuum to a widow (in lieu of dower), with remainder over, a corporation in which testator held stock, two days after his death was authorized to double its capital. The new stock was apportioned among the old stockholders, and an extra dividend of $18 per share out of the surplus profits declared, to be credited on the subscriptions to the new stock.—Held, that the new stock subscribed for by the executor, to the extent of $18 per share, belonged to the widow. In Wilibank’s Appeal, 64 Pa. St. 256, after a trust, composed partly of stocks, to pay $1,400 annually from the income of testator’s estate to his daughter, and the remainder to his son, had been given, one corporation, whose stock was valued at $100 at par. increased its capital, .allotting to each stockholder forty per cent, in stock, upon the payment of $75 per share. The trustee sold this privilege for about $20 ¡per share, carrying the proceeds to the capital fund of his trust. Another corporation increased its capital on nearly similar terms, and the trustee subscribed to the new stock, and afterwards sold the stock at a profit of $400, which he also carried to the corpus.—Held, that both items were income. Contra, Atkins v. Albree, 12 Allen 359. In Emery v. Wason, 107 Mass. 507, a testator, owning shares of stock in a corporation, subscribed for new shares and paid half the price thereof. He died before the remaining half was payable, and his ■executors paid it and took the new certificates. Under a bequest to his ■son for life of “ the income of my stock,” with remainder to the son’s ■children.—Held, that the new shares passed as capital. See, also, Billings v. Billings, 110 Mass. 225; Band v. Hubbell, 115 Mass. Ifi'l; Lord •v. Brooks, 52 N. H.72; Winslow v. Haven, Id. 76; Berry on Trusts, 544-.546.—Rep.

On May 1st, 1862, George W. Hughes, of Paterson, in the state of Hew Jersey, then temporarily living in Russia, departed this life, and having before his death, and on the 31st day of December, 1858, duly made and executed his last will and testament in due form of law, and published the same in the presence of three subscribing witnesses thereto, as follows: “I, George Washington Hughes, of New Jersey, in the United States of America, now temporarily residing in Russia, make, publish and declare this to be my last will and testament, namely : “ I give, devise and bequeath to my wife, Catharine Hughes, for and during her natural life, all my property, real and personal, to have, receive and use the income thereof, but without power to alienate or encumber the principal thereof, and with the condition that she shall pay out of said income the sum of one thousand dollars to my son George Washington Hughes, when he attains the age of twenty-one years, and shall also pay the like sum to each other child of mine, on its arrival at the age of majority. “ I give, devise and bequeath to my son George Washington Hughes, upon and after the death of said Catharine, my wife, all my property, real and personal, to be equally shared, however, by him with any other child or children of mine then living. “ If neither my said son nor any other descendants of mine are living at the time of the death of my wife aforesaid, then, upon her death, I devise, bequeath and direct that all my property, real and personal, shall be equally distributed as follows, namely: one-fifth part to the children of my brother John Hughes; one-fifth part to the children of my brother Jarrett Hughes; one-fifth part to the children of my brother Scott Hughes; one-fifth part to the children of my brother William Hughes, and one-fifth part to the child of my deceased sister Elizabeth Davison. “ And I hereby revoke any former will or wills made by me, and declare this to be my last will and testament. “ And I nominate and desire to have appointed as executrix of this my last will and testament, my wife Catharine Hughes, and desire that she may not be required to give any bonds regarding its execution.” Testator’s only child, George Washington Hughes, died before him, leaving no lawful issue. Joseph Davison, the son of testator’s sister, Elizabeth Davison, died after testator, but before testator’s wife, Catharine Hughes. Testator’s brothers survive. On September 15th, 1862, Catharine Hughes proved the will before the surrogate of Passaic county. Part of the estate consisted of roubles and copecks deposited in St. Petersburg, and sterling in London, then of the gold value of $37,499.51, which the executrix sold, on October 21st, 1862, @ 139, producing in currency, $52,573.89. On October 20th, 1868, Catharine married Edward M. W eiss. A bill was filed for a construction of the will, and an injunction issued to prevent Catharine and her husband from transferring or converting to their own use, any part of the estate; and, also, a ne exeat to prevent their leaving the state until after they had transferred the funds of the estate, by an assignment, to a receiver appointed by the court. The assignment was executed. On May 11th, 1877, Catharine died, leaving a will, and her executors were thereupon substituted in this suit. The following is the opinion of the vice-chancellor : The following conclusions have been reached. No formal opinion will be filed. First—The legacy to Joseph Davison vested in him on the death of the testator, and his representatives are entitled to it. Post v. Herbert, 12 G. E. Gr. 51fi; S. G., 11 G. E. Gr. 278; Van Dyke v. Vanderpool, 1 Me Cart. 198; Howell v. Green, 2 Vr. 570; Beatty v. Montgomery, 6 G. E. Gr. 824.. Second—The income bequeathed to the testator’s widow for life, did not begin to accrue until one year after the probate of his will. The gift is a legacy payable at different periods, and as no time is fixed by the will for the payment of any part, no part of it became payable until the expiration of one year after probate. Rev. 581 § 1; Church atAcquackanonk v. Ackerman, Sax. 40 ; Brinkerhoff v. Marselis, 4 Zdb. 680 ; Halsted v. Meeker, '8 G. E. Gr. 136 ; Hennion v. Jacobus, 12 G. E. Gr. 28. There is nothing in the nature of the gift to show that the testator intended any part of it should be payable earlier than the time designated bylaw; there is certainly no more evidence of such an intention, than there would have been had the testator given the interest or income of a specified portion of his estate. JEalsted v.' Meeker’s ex’r and JEennion’s ex’r v. Jacobus, are direct authorities that, had the gift been in that form, no interest or income would have accrued until the expiration of a year' after probate. Third—The premium received on the sale of the gold, as well as all other accretions, additions and profits, accruing during the year immediately subsequent to the probate of the will, constituted part of the principal fund, and did not pass to the widow as income. Van Doren v. Olden, 4 O. JE. Or. 176. Fourth—The representatives of the widow must account for the premium actually received on the sale of the gold,- and not for what might have been received had it been sold at a later day. A decree, drawn in conformity to these conclusions, will be advised. From this decree the appeal was brought.