Comstock v. Comstock

It is apparent, from the will and facts found, that the testator intended to make provision in his will for the support of his wife during her life, and that the measure of that support, in addition to what he gave to her absolutely, was to be $1,200 a year. It is also apparent that the testator supposed that the trust created for her benefit would yield her that amount each and every year. That which he did not foresee happened, and the trust estate was for a period of years unable to yield for her the anticipated and stipulated amount. The question presented is whether he provided for that contingency, or, to be more precise, whether he so provided for it that she was entitled to make up the deficiency for any year out of the net income of after years in excess of her direct claim upon it. To justify an affirmative answer to this question, it must appear that the annuity given to her was by the will charged upon the net income of the trust fund generally, and not upon the incomede anno in annum.

The language of the will admits of little doubt upon this subject. Each year is made a financial period. The gross income for each such period is directed to be reduced to a net one by the payment of all charges and expenses, and that net amount is all disposed of. The payment to Mrs. Raymond comes first, and is expressed to be "out of the net annual income." The payments to her are required to be made at least semi-annually, thus emphasizing the distinction in the testator's mind between the paying period and the financial one. Then follows the annuity to the sister, expressed to be paid out of "any excess of said net annual income." These provisions are succeeded by those looking to the support of a missionary. This support again is charged upon the "remaining net annual income," and is made dependent upon the amount of such remainder. An excess of income over these demands being regarded as probable or possible, the testator significantly adds "if in any year there shall be an excess of said net income after fully satisfying all the provisions hereinbefore contained, . . . I direct such excess to be added to and to become a part of the principal; provided that if such excess in any year shall be more than two hundred dollars, then I give all of such excess over and above said sum of two hundred dollars, to The American Home Missionary Society," etc. In view of the possibility that the gift of income for the support of a missionary might fail, through the failure of the church society to accept or continue to exercise the trust imposed upon it in connection therewith, the testator next provides for the disposition in such case of "the excess of said net income" after the payment of the two annuities. Having thus at the end of each year effectually disposed of all the income for that year, and thus in the end of all income, the remainder over upon the termination of the trust is given to two missionary societies.

It thus appears that the net income for each year is expressly made the fund out of which the annuity to Mrs. Raymond for that year was to be paid. There is no provision for the payment of possible deficiencies out of other or after-acquired income. There is a careful appropriation to specified objects of the whole of each year's net income in excess of the annuity, leaving no undisposed of fund to be drawn upon. The scheme of the will in respect to the trust provisions is clearly one which deals with each year's income as a separate entity, and disposes of it fully and completely. Its provisions are too definite and precise to admit of the existence of an expressed intent that deficiencies in one year's payments should be made up in subsequent years' distributions. With unexpressed intents we can have no concern.Fairfield v. Lawson, 50 Conn. 501; Weed v. Scofield, 73 id. 670. Manifestly the testator did not provide for the contingency which he did not foresee.

The claim in behalf of Mrs. Raymond's estate is not aided by the fact that the benefactions to her in the will were in lieu of dower. That fact cannot suffice to give her what the will has omitted to give. She cannot be regarded as a purchaser of that which the will does not bestow. Lord v.Lord, 23 Conn. 327; Stelfox v. Sugden, John. Rep. (High Court of Chancery, 1858-60) 234.

The parties have called our attention to adjudicated cases in support of their respective contentions. As the question involved is one which is dependent upon the construction to be given to the language of the testator as indicative of his intent, we should expect to find little that is directly in point in such adjudications, and we find little that has more than a helpful suggestiveness. In the following cases it was held that the annuities for each year were charged upon the income for that year and not upon the income generally, and yet in none of them was the language of the will as unmistakably indicative of that intent as the language here. Appealof Brewster, 12 A. 470; Estate of Pierce,56 Wis. 560; Casamaijor v. Pearson, 8 Cl. Fin. 69. In New York the right to recover deferred payments has been recognized, but in these cases the wills expressly directed the annuities to be paid out of the income, without restriction and without the word "annual," and the decisions rested upon the absence of any directions that they should be paid out of each year's income. Stewart v. Chambers, 2 Sandf. Ch. (N. Y.) 382; Matter of Chauncey, 119 N.Y. 77. Other cases presenting similar conditions are Pitt v. Dacre, L. R. 3 Ch. Div. 295; Darbon v. Rickards, 14 Sim. 537. The case of Booth v. Coulton, L. R. 5 Ch. App. 684, presents a situation more like the present, in that certain annuities were made payable half yearly out of the "annual profits" of the trust fund. The court held that they were charged upon the income generally, but did so upon the strength of considerations arising out of the language of the will which could not be urged in the present case.

Susan E. Comstock's claim is controlled by similar considerations.

The Superior Court is advised that neither the executors of the will of Mary A. Raymond, nor Susan E. Comstock, are entitled to receive from the trustees of said trust fund, in payment of the annual sums provided in the sixth paragraph of said will to be paid to said Mary A. Raymond and Susan E. Comstock, respectively, or any part thereof, any share of the income of said fund except such as accrued during the financial year for which such payment is made.

No costs in this court will be taxed in favor of either party.

In this opinion the other judges concurred.