Collins v. Wardell

The opinion of the court was delivered by Garretson, J.

We agree with the conclusion of the learned chancellor, that the complainants were entitled to the aid, advice and direction of the court; that the death of William Phyfe before the testatrix did not operate to defeat the gift of the fund to the persons to whom she bequeathed it by the fifteenth paragraph of the will; that the executors• are bound to set apart so much of the residue in their hands as1 will be reasonably sufficient, when properly invested, to furnish an income of at least $6,000 a year; that a sum of not less than $160,000 is such a sum; that the share of Thomas Wintringham, who predeceased the testatrix, given under the fifteenth paragraph of the will, by the provision of the sixteenth paragraph lapsed and fell into the residue, to be disposed of by the seventeenth paragraph.

We have reached a different conclusion, however, as to the time when the capital fund set apart by the executors to produce an income of $6,000 a year, in accordance with the directions of the fifteenth clause of the will, shall be distributed. We think that distribution of two-thirds of that capital fund should be made as soon as it is set apart by the executors. William Phyfe, to whom two-thirds of the income of $6,000 a year was by the will to go; having predeceased the testatrix, and the interest of those in this fund who survived her having become vested by her death, no reason exists, unless it so appears from the will itself, why any more of the fund than is sufficient to raise the annuity of $2,000 for Duncan Phyfe should be retained by the executors. We are not able to find in the will the *370 intention of the testatrix that the entire fund should be held by the executors until the death of Duncan Phyfe.

The language used by the testatrix indicates an intention to have the capital fund distributed at such times as the necessity for holding it b> accomplish the purpose of the testatrix, namely, to produce $4,000 a 3rear for one brother for his life and $2,000 a year for the other brother for life, ceased.

The will did not merely provide incomes for the brothers, but also fixed a certain sum for distribution among others therein named, else it might be said that 'there was no necessity for the executors to set apart more than enough to produce $2,000 a year; but the testatrix wanted to give to those in that paragraph mentioned a certain sum absolutely, which she determined should be the principal sum producing $6,000 a 3fear.

The testatrix made no disposition of any accumulation of income beyond that necessary to pay the annuities, respectively; such accumulation would arise because of the death of any annuitant before the other, unless the capital sum necessary to raise the annuity of the one who died first were distributed upon his death, and this circumstance bears upon the intention of the testatrix.

The direction of the testatrix,

“and out of said income to pay to my brother William Phyfe $4,000 a year, and to my brother Duncan Phyfe $2,000 a year for the terms of their natural lives, respectively, and after thew death I direct the capital of said fund to be divided equally,” &c.,

means that the capital fund is to be divided upon the respective deaths of the annuitants, the income having been paid to them for their respective lives. The words “their death,” in the connection used, can mean only ,£theif jeesp,ec£iv£¿ deaths.” These words were not expressive of a single event, but of the death of each one; that is, their respective deaths.

The cases seem to support the contention that where the income of a single fund is bequeathed to two or more persons for life, with remainder over “after their death,” the courts *371 construe these words to mean “after their respective deaths,” and decree a present division of the fund and a distribution of the part thereof not required to produce income for the life-tenants.

In Woolston v. Beck, 7 Stew. Eq. 74, a testator gave the use of a farm to his two daughters, S. and K., for life, S. to have two-thirds of the income and K. one-third. “And after the decease of my two daughters,” to their children in fee, in specific portions. S. died, leaving children. Held, that on her death the person to whom the remainder was given became entitled to the possession of the other two-thirds. The chancellor held that the words “after the death of my two daughters” will be construed to mean after the death of the two, respectively. In Stoutenburgh v. Moore, 10 Stew. Eq. 63, the will provided:

“All the rest and residue of my estate, real and personal, I give, devise and bequeath the income to my two sons, Kobert and Edward, to be equally divided between them during their lives, and at their death to be equally divided between my grandchildren, to them, their heirs and assigns.”

It was held that upon the death of Edward his child was entitled to a moiety of the estate absolutely, the chancellor saying: “He certainly intended that at the respective deaths of his sons the shares of-the residue, of which he gave them, respectively, the income, should go over; for he directs that 'at their deaths’ — by which he meant their respective deaths— the residue shall be divided between his grandchildren.” Budd v. Haines, 7 Dick. Ch. Rep. 488; Pennington v. Rutherford, 11 C. E. Gr. 313; Jackson v. Luguere, 5 Conn. 221 .

The decree will be reversed.

For reversal-The Chief-Justice, Van Syckel, Fort, Garretson, Pitney, Vredenburgh, Voorhees, Vroom-8 For affirmance — None.