Foster v. Hargate

The testator's sisters are not entitled to the whole of the income of the trust estate, if the expenses mentioned in the final clause of this section of the codicil are the same as those mentioned in the clause which precedes it. If the words the testator used are given their ordinary meaning, by "expenses," in the final clause, is intended those incident to the settlement of the testator's estate, for they are the "usual and ordinary expenses of administration," and are to be deducted "before my estate vests" in the trustee; and by "expenses" mentioned in the preceding clause is intended those incident to the administration of the trust, for they are the expenses incident "to the care of said estate by my said executor, acting as trustee," and are not to be deducted until the trust estate is finally distributed. It is probable, therefore, that the expenses the testator had in mind in the final clause are not the same as those in the clause which precedes it; in other words, that the final clause is not intended to explain what expenses are meant in the clause which precedes it, but to limit the estate of which the testator's sisters are to have the income. It follows, therefore, that the testator probably intended to give his sisters the whole of the income of the trust estate, when he said that the expenses incident to its care and administration are to be deducted from the residuum before it is delivered to the residuary legatee.

Case discharged.

All concurred