Fuller v. Winthrop , 85 Mass. 51 ( 1861 )

Hoar, J.

The questions submitted to us by the bill and answers are, whether Mr. Winthrop, the husband of Frances Pickering Winthrop, is entitled to the sum of fifteen thousand dollars, which would have been payable to her if she had lived, or to any part thereof, the same not having been paid, nor any election respecting the payment having been made by her, during her lifetime ; and whether the semi-annual payment of $450, which was made to her during her life, should be made to him until the principal sum of $15,000 is paid ?

The bill avers, and the answers admit, that the provision for the payment of the $15,000 to each of the three daughters was in fact made to equalize the shares of the testator’s four daughters in his estate; Mrs. Russell, the other daughter, having received from the testator a gift of $15,000 at the time of her marriage; and the three daughters having received no such gifts from the testator prior to his decease, but only annual allowances from him after their marriages.

The difficulty in interpreting the will arises from the occurrence of circumstances which do not seem to have been contemplated by the testator, and were therefore not met by any express provision ; first, the death of Mrs. Winthrop before the trustees were ready to pay the legacy of $15,000; and secondly, the insufficiency of the sales of lands which, he authorizes his trustees to sell, to pay the debts and legacies which he desired should be paid from those sales.

But on a careful comparison of all the parts of the will, we are satisfied that the legacy to Mrs. Winthrop of $15,000 must be regarded as vesting at the decease of the testator ; and that this result is not only required by the application of sound rules of construction, but was intended by him.

It is the policy of the law to construe legacies as vested rather than contingent, wherever it can be done without perverting the language of the'bequest; and there are three principal considerations applicable to the case before us, which tend to show that the possession and not the interest was intended to be postponed.

1. There is no devise over of the legacy, showing any purpose in the testator that the legatee should not receive it at all events.

2. The postponement of payment is wholly for the benefit and convenience of the estate, and not upon any consideration personal to the legatee; and in such a case the deferring of the payment does not prevent the legacy from vesting. 1 Jarman on Wills, 756, 763. Dawson v. Killet, 1 Bro. C. C. 124. Birdsall v. Hewlett, 1 Paige, 32. Harris v. Fly, 7 Paige, 421. Pinbury v. Elkin, 1 P. W. 563. Goulbourn v. Brooks, 2 Y. & Coll. 539. Marsh v. Wheeler, 2 Edw. Ch. 163. Bowker v. Bowker 9 Cush. 519.

3. That interest is given until a legacy becomes payable, is one of the strongest indications of a vested legacy. Hoath v. Hoath, 2 Bro. C. C. 3. Hanson v. Graham, 6 Ves. 239. Stapleton v. Cheele, 2 Vern. 673. It is true that interest is not here given eo nomine; but the direction for the payment semi-annually of the precise sum to which the interest on the principal legacy would amount, and that this payment should cease when the principal sum should be paid, is substantially to the same effect.

If we look at the apparent design of the testator, we are led to the same conclusion. If the legacy did not vest until the trustees were ready to pay it, then, in case of the death of the legatee leaving issue, it would lapse into the residue, and the equality intended among the testator’s daughters would not be secured.

In considering the objections urged on behalf of the residuary legatees, the first and most important undoubtedly is, that, by the codicil, the payment of the $15,000 to each of the three daughters is required to be made out of a fund specifically designated, and that they are therefore in the nature of specific legacies ; so that, the fund proving insufficient, the legacies must fail or abate. This objection has no bearing upon the question whether the legacies are vested or contingent, but, in the condition of the property, would materially affect the amount to be paid. But on looking at the will and codicil together, we are of opinion that the legacies are demonstrative, in reference to the fund primarily applicable to their payment, and not specific. By the will, the whole income of the estate, after the provision for the wife, is made chargeable with the creation of a fund for the payment of these legacies; and it was ample for the purpose. The testator then expressly declares that his executors shall “ have a lien on all ” his “ estates and property such as the law gives them; ” meaning certainly for the payment of debts, but very likely also for the satisfaction of specific legacies. He expresses his strong confidence — “-that he has assumed” — that his personal property not specially devised, and the income of his real estate, would be sufficient, within a short time after his decease, to pay not only the annuity to his wife and the semiannual payments to his three daughters, with the reservation of the fund of $2000, but all his debts and testamentary expenses. But, as an additional resource, he authorizes his executors to sell certain specified lands, whether necessary for the payment of debts and legacies or not, and after payment of the debts and legacies to pay the remainder to his trustees to be invested for the same purposes as the residue of his estate. And that he supposes that the proceeds of the sales of land will be more than sufficient for the payment of debts and legacies is obvious from the further provision, that his trustees are authorized to make good any losses by fire from such proceeds. The codicil directs the trustees to provide for and pay his principal debts, and the three principal sums of $15,000 to his three daughters, from the proceeds of the sales of the real estate which he has authorized to be sold, and authorizes the trustees to negotiate a continuance of the indebtedness of the estate, in order to have ample time to make the necessary sales for that purpose. But while this shows a continued confidence that the value of the lands to be sold was ample to satisfy the payments thus charged upon them, we can see no evidence of intention to make the legacies to his daughters contingent upon the sufficiency of the fund. The fact that they are coupled with and put upon the same footing as debts would tend strongly to show that he did not mean to direct that they should be charged upon the sales of land exclusively. And as the power to negotiate a renewal of the principal debts would imply a power- to make them a charge upon the whole estate in the hands of the trustees, it would seem to be the duty of the trustees to give a preference to the payment of the legacies, if they could be satisfied only from the sales of lands, to that of the principal debts, for which the whole estate would be liable. But we regard the effect of the codicil to be only to make the proceeds of the sales of land the fund primarily but not solely chargeable ; operating as a direction to the trustees rather than as a limitation of the legacy. See Hartley v. Hurle, 5 Ves. (Amer. ed.) 540, n. a.

Two other objections to the vesting of the legacy deserve consideration. First, it is argued that the provision for the husband of either of the daughters who should die with or without issue is such as to prevent a claim under the will, beyond the proportion of the income of the residue to which he is entitled. But we do not think the clause which makes provision for the husband has any application except to the share in the income of the residue. Mr. Winthrop’s claim is not for anything which the will gives him, but as administrator of his wife, for property belonging to her, to be administered and distributed according to law. The right is the same as if the wife had survived the husband, and any other person were her administrator. Secondly, it is urged that the legacy was contingent, because it was not an absolute legacy in money, but was to be paid to Mrs. Winthrop in money, or invested for her in the purchase of a house, at her election; and that this election, not having been made in her lifetime, has now become impossible. But we think that this election was not a condition of the legacy, but was merely a privilege as to the mode of payment; as if the testator had said: “ I give to A. $15,000; and direct my executors to allow him, instead of money, to take it in such stocks belonging to my estate as he shall select, at their appraised value; ” or, “ which I direct my executors to invest for him, as he shall order.” The legacy is of the money, the fixed sum ; and the investment is to be of the legacy, after it has become payable, and is ready for payment. The failure to make the election does not affect the vesting of the legacy in its original form. A principle much analogous was applied in the case of Curling v. May, cited in 3 Atk. 255. There A. had given £6500 to B. in trust, that B. should lay out the same upon a purchase of lands, or put the same out on good securities for the separate use of his daughter H., her heirs, executors, &c. The testator died in 1729. In 1731, the daughter H. died, before the money was invested in a purchase; the husband, as administrator, brought a bill for the money against the heir of H., and the money was decreed to the administrator, for the wife not having signified any intention of a preference, the court would take it as it was found. And see Van v. Barnett, 19 Ves. 102; Wheldale v. Partridge, 5 Ves. 388, and cases referred to in 1 Jarman on Wills, 523, n. 1. It is noticeable that the codicil does not allude to the investment of the legacy in a house.

The answer to the other points taken, that there was an election of the executors which of the legatees to pay first, and that the fund was insufficient, and therefore the legacy might fail, is given in the decision that the legacy is not exclusively chargeable upon the fund created by. the sales of land.

Upon the whole matter, the judgment of the court is, that Mr. Winthrop, as administrator of his wife, is entitled to claim and receive the legacy of $15,000, and the semi-annual payments of $450 until the principal sum is paid, in the same manner as she would have been if she were now living, except that the election of an investment in real estate cannot now be made. A direction as to diligence in executing their trust cannot be given to the trustees under this bill.

Decree accordingly.