Whelan v. Reilly , 5 W. Va. 356 ( 1872 )

Maxwell, J.

The appellees claim one-third of the residuary fund of the estate of Philip Reilly, deceased, on the ground of the death of William Reilly, one of the supposed residuary legatees in the life-time of the testator Philip Reilly.

There is no controversy as to what the residuary fund is.

The clauses of the will on which the controversy turns are the twelfth, thirteenth, fourteenth and nineteenth, as follows

“ Twelfthly. All the estate of every kind, which shall at anytime come or belong to the trustees by virtue of this will, or any thing done in pursuance of the same, and which is not otherwise disposed of in this will, shall constitute a residuary fund. All moneys being part thereof shall be kept invested from time to time as may be found advantageous, in bonds of the State of Virginia, of which the trustees shall receive the income.

“ Thirteenthly. The income of the said residuary fund, until the death of the last survivor of my three children, William, Philip and Mary Jane, shall also be, from time to time, invested by the trustees in bonds of the State of Virginia, and become part of the principal of the said residuary fund, unless the trustees shall think propoi\to apply any part of such last mentioned income (which they are hereby authorized to do) to the support and maintenance of any or all of my said three last named children, or their families, or to the education of any of their children or other descendants; but such application shall be made only according to the uncontrolled discretion of the trustees.

“Fourteenthly. After the death of the last survivor of my three children, William, Philip and Mary Jane, the said residuary fund shall be held in trust for the children and other descendants then living of my said three last named children or such of them as may have a descendant then living, and all such descendants shall have equal shares as among themselves, without regard to any differences in degrees of relationship or descent.”

“ Nineteenthly. Notwithstanding anything hereinbefore contained, I desire to confer on the trustees power to encourage my three children, William, Philip and Mary Jane, to conduct themselves well through life, and with that view do hereby authorize the trustees, whenever and as often as they shall think the same is deserved by the' good conduct of my said last named three children, or either of them, to advance and give to them, or either of them, any part or parts of the 'residuary fund, whether principal or interest, in money or otherwise,, without being accountable for the same to any person whomsoever; the power hereby given to dispose of the said residuary fund to or among my said three last named ■children, or any or either of them, being limited and controlled only by the discretion and judgment of the trustees.”

By the fourteenth clause of the will, after the death of the last survivor of the testator’s three children, William, Philip and Mary Jane, the said residuary fund is to be held in trust for the children and other descendants then living of the said three last named children or such of them as may have a descendant then living.

The language of this clause is too plain to admit of any doubt as to the intention of the testator. Whelan and others vs. Reilly and others, 3 W. Va., 597.

It is claimed that by the nineteenth clause a trust interest in the residuary fund is vested in the testator’s two children, Philip and Mary Jane, and that a trust interest to the extent -of one-third of the residuary fund would have vested in the said William if he had survived the testator, which interest by reason of the death of the said William in the lifetime of the testator has lapsed.

When the language of a testator is plain and his meaning clear, the courts have nothing to do but to carry out the will of the testator if not inconsistent with some rule of law.

By no construction of the language used in the nineteenth clause of the will can it be held that the testator intended to give to the said William, Philip or Mary Jane, or to either of them, any vested interest in the said residuary fund, or in fact any interest in said fund.

By the fourteenth clause there is an absolute disposition of the residuary fund in trust for the children and other descendants of the said William, Philip and Mary Jane, living at the time of the death of the last survivor of the said persons.

All the interest which the said William, Philip and Mary Jane could have in the residuary fund is dependent on the uncontrolled discretion of the trustees, and is therefore a contingent interest.

As the said William would have had no vested interest in any portion of the said residuarj^ fund if he had survived the testator, he had no interest in the said fund to lapse by his death.

The decree complained of will have to be reversed and the bill dismissed.

The. other judges concurred.

Decree Reversed.