Kelly v. Dike ( 1867 )

The opinion of the Court was given by

Bradley, C. J.

This is a bill in equity, calling upon the court for a construction, in several particulars, of the will of the late Ebenezer Kelly.

The questions propounded are : — First, Did the children of said Kelly take under his will estates in equity, vested in them at the time of his decease, or contingent upon the youngest living to the age of twenty-one years.

In determining questions of this nature, the courts construe the estates as vested, rather than contingent, where the expressions of the will are capable of either interpretation. D’ Wolf Will Case, R. I. Reports. This disposition on the part of the courts is strongest in the more recent cases. 2 Redfield on Wills, 612. The allowance of the entire income pending the period between the decease and the final delivery or distribution of the corpus of the property, is deemed sufficient evidence of the intention of the testator, that the estate shall vest at the decease. Where a portion is given especially in the discretion of the trustees, it is said by Mr. Redfield, in his summary of the cases on this subject, to afford a “a less conclusive ground of inference in favor of the estate vesting, but still one of very considerable weight.” 2 Redfield on Wills, 613, note.

In the case at bar, it will be seen by the provisions of the will, that a portion of the trust fund is annually given, that specific additional sums are to be allowed the sons upon going into business, and to the daughters upon marriage, and a discretionary sum to be given one for expenses in Europe prior to the contingency in question, and that these advancements “shall be charged against them respectively, and be deducted by them from the respective shares of my sons and daughters receiving said advances.” This direction thus to charge these advances to the shares seems to us very strongly to indicate the idea and intention in the mind of the testator, that at the time of such charges, the children had some vested interest in the estate, against which these charges could be made.

The authority given to make the advances also, as we have seen, is of very considerable weight in favor of the estate vesting.

Again, we do not think it reasonable to suppose that the testator intended that none of his children should have any vested interest unless the youngest child should arrive at the age of twenty-one. The phrase “ when my youngest child shall arrive at the age of twenty-one years said trust fund shall be divided between my children,” seems to us, viewed in connection with the whole structure and plan of the will, rather to in- • dicate the time of the division, or payment as it were, than to indicate a condition precedent as to any of his children having a vested interest in his estate. The concluding clauses of this paragraph of the will would be absolutely conclusive, if understood literally. The clause is, “ And the dividends, income and profits thereof, to be paid over by the said trustees semiannually, in each and every year, from the time of my decease, for and during the term of the natural lives of my said children, to each of them.” And if the clause cannot be understood literally, considered in connection with the whole will, still it indicates strongly that in the testator’s mind he believed that each of his children had a vested interest in his estate from the time of his decease, and not merely in case his youngest child should reach the age of twenty-one.

Again, there is no deviso over, upon the failure of such contingency.

For these reasons we are satisfied that the intention to be deduced from all the provisions of the will is, that the children should take a vested equitable estate upon the decease of the testator.

A second question is, whether the children are entitled to the “income, semi-annually” etc., of the trust fund, from the time of the decease of the. testator.

The clause which we have just cited from the will, certainly declares in so many words, that the income shall be thus paid over. In this respect it seems to us in conflict with the main scope and plan of the will. That certainly is, that the sum of twelve hundred dollars shall be annually paid to the widow, for the support of herself and children, with specific and other payments upon entering business, marriage, and education of one of the sons in Europe. The will is not drafted with clear understanding and harmony in all its provisions. We think we give effect to, its main and controlling intent by treating the phrase “ from the time of my decease ” in the clause in question, as having been inadvertently used, because of its manifest inconsistency with the whole scope, and plan of the will. Having made these careful and explicit, trust provisions in regard to his estate and his children, it is not reasonable to suppose that he intended that the entire income of his property should semi-annually be paid over to these young children discharged of the trust, and that the special provision made by Mm for them should be borne by the principal of his estate.

From the time that the youngest arrived at the age of twenty-one, we believe the testator intended that the entire income should be paid to the children, and not before. Such seems the meaning of the context.

As to the third question, whether the payment and advances heretofore made by the trustees should be charged to the income, or taken put of the principal, the answer is already given substantially, in deciding the preceding question. We think-these payments for the support of the family should be charged to the income generally, and the advances to each child be charged to the share of that child, as required by the will.