Conant v. Bassett ( 1893 )

The 'Chancellor.

The leasehold interest, from which the income in question springs, is for years and is deemed personal estate. 1 Wms. Ex. 674. It is observed that the net income is not made payable to a class, generally the testator’s children, so that, upon the death of one, the survivors will take (Crane v. Bolles, 4 Dick. Ch. Rep. 373, 384), but to his three children, nominatim, in defined proportions, so as to clearly import distinctness of interest among the objects of the gift. Hawk. Wills 112; Moore's Executors v. Trustees of M. E. Church.at Tuckerton, 12 C. E. Gr. 47, 50 ; Post v. Rivers, 13 Stew. Eq. 21. The gift of the portions of the income is not made subject to a condition precedent of any kind, and hence the portions given are absolute and vested. Hawk. Wills 223. No provision is made for the disposition of any share in case of the death of its donee during the continuance of the trust, hence the quantum of the gift to each donee is one-third of the net income, continuing until the death of both the testator’s daughters. The gift of the income does not carry with it the whole or portions of the fund or corpus from which it is to arise, because the time of enjoyment is not unlimited, but expressly confined to the period of two lives in being (Parker’s Executors v. Moore, 10 C. E. Gr. 228, 234; Hawk. Wills 123), hence it is neither expressly nor impliedly controlled by any provisions of the will which concern the ultimate disposition of the corpus.

I am therefore of opinion that, at the death of George F. Bassett, his right to one-third of the net income, payable periodically, as it shall arise, so long as either of his sisters shall live, vested in him and could be disposed of by him by will, and hence that his widow, who is the executrix of his will and the sole legatee thereunder, will take it. The complainants will be so directed.

The gift of the income, as I have in substance, said, is not so interwoven with the disposition of the corpus, from which it springs, as to be at all dependent upon that disposition. Its bearing upon the disposition of the corpus may, however, be a matter for consideration at the proper time. Particular provision for transmission of the corpus is made in the eighth paragraph of the will. The construction of that paragraph has been argued by counsel, but, as the present emergency does not require a solution of the questions suggested in that argument, and the bill does not ask such solution, and it is obvious, upon perusal of the eighth paragraph, that when the time for the disposition of the corpus arrives, parties not now before the court, to be bound by its decision, will be necessary to a complete and beneficial adjudication, I refrain now from any expression of opinion with reference to rights in the corpus. Traphagen v. Levy, 18 Stew. Eq. 448, 451; Bonnell v. Bonnell, 2 Dick. Ch. Rep. 540, 543.