In Re the Judicial Settlement of the Account of Albertson

Gray, J.

To change the general rule that, as between the life tenant and the remainderman, the former is bound to pay the taxes imposed, and the interest accruing upon a mortgage, a very clear expression of such an intention on the part of the testator must be found in his will. The usual purpose of the testator in providing for a beneficial interest in a trust estate is, that the net income shall be applicable only, and that the corpus; or capital, of the trust estate shall remain intact until the trust shall have determined. The principle has been so long and firmly established that interest on mortgages, taxes, repairs and all those current expenses, which are fairly incidental to the maintenance of the realty used by a life tenant, are payable by him, that it should be adhered to upon all occasions, unless, in so doing, we violate a plain direction to the contrary; which, if not found in the will in so many words, yet is the only one which a fair and reasonable construction permits of our finding. What do we find in the present will which warrants our enlarging the provision of the fourth clause in favor of the widow ? By that clause a trust is created, comprehending all of the residuary estate remaining, after paying debts and expenses incidental to administration; and the rents, issues, income and profits received by the trustees are to be applied to the sole use of the widow for her life. Although the direction there is not, in words, to apply the neb income, etc., received by the trustees, the omission is supplied by the rules of construction, and net income only is applicable to the beneficiary. But, in the sixth paragraph of the will, where the right to use and occupy the Jamaica farm, free of rent, is given to the widow, so long as she lives, occur words, which the appellants insist upon as containing an unequivocal expression by testator of an intention that, pending her occupation, the trustees are to appropriate from the capital of the estate the sums required to keep down all taxes, interest, repairs, etc., upon the property. The words are : “ If my said wife shall so desire, she be permitted to use and occupy said farm free of rent so long as she shall live ; and I direct that my said trustees shall, during the time that my said wife shall so use and occupy said farm, pay out of my estate, from time to time as the same shall accrue or become necessary, all taxes upon said farm, and the expenses of keeping the buildings thereon in proper repair, and all other expenses attending the proper upholding and maintaining of the same; and also the interest upon any and all mortgages which shall be upon said farm at the time of my death.” This permission to his widow to use the farm qualified the previously given authority to sell the testator’s realty, by excepting so much of it in the contingency mentioned.

In my opinion the insertion of the words “ pay out of my estate ” in the sixth clause, is not, in itself, sufficient to support the construction contended for by these appellants. . Such an expression is quite as consistent with the idea that the income shall be resorted to, as that the capital of the trust fund shall be diminished for the purpose. If we refer to the other parts of the will, they disclose rather an intention to preserve intact the corpus of the estate, for the ultimate disposition arranged with respect to the residuary estate, upon the death of the life tenant. That disposition is the transfer to his niece and nephews of so much of the capital of the trust estate as shall remain after the payment of certain legacies, given by the third clause of the will, and which are postponed in payment until the death of the widow. These words are not without importance, viz., “ to pay out of the capital of said trust estate the legacies * * * and to cowoey, transfer and distribute the remainder of the capital of said trust estate.” To sustain a construction, whereby the capital might be more or less seriously impaired, by using it in the payment of taxes and of interest on the mortgage, and in maintaining the realty used by the beneficiary, we ought to find words of the most unmistakable import and pointing unequivocally in that direction. In the fifth clause the understanding of the testator that his widow should only have the use or benefit of the income of the estate seems evidenced, when he speaks of the trustees as “ appointed of the estate devised and bequeathed as aforesaid for' the use and benefit of my wife Sarah during her life. ” In the same clause he provides that the proceeds of any sales, made under the power conferred, “shall be held and managed by the said trustees or their successors, upon the same trust and for the same purposes and be disposed of in the same manner as such real property would in case of no such sale by the force of the previous provisions,” etc. I do not think to concede to the words in the sixth clause, “ pay out of my estate,” the force and meaning that appellants contend for would be consistent with the manifest plan of the will; and, unless we can find authority for such a concession by a general reading and view of the instrument, we should not allow possibly ambiguous words and expressions to change an established rule of construction, or to defeat what seems to be elsewhere rather a different intent of the testator.

It may be said that the widow, or life tenant, in occupying the farm, would have been bound, by the general rule in such cases, to keep down these current charges, and that these words in the sixth clause were unnecessary. That may be true and yet the force of the rule remain unaffected. W e may consider the language as surplusage, or as an instruction to the trustees. They may have been precautionary in their use. The fact that she would legally have been bound to pay these charges is no reason why the testator should not specifically direct his trustees to see to their payment from the revenues of the trust fund. He had just given her the beneficial interest in the revenue from his whole estate, of which this farm was a component part. Upon extending to her the option of using and occupying the farm, and thus withdrawing it from the control of the trustees, the testator, in directing them to pay the taxes, interest and other expenses of maintenance, merely provided against the possibility of an accumulation of such liens and of serious deterioration in value; whether from neglect, or from any other cause, and thereby insured the preservation of his residuary estate for the ultimate purposes specified.

I think the views I have expressed better harmonize with the general scheme of this will and work out the more equitable result. I, therefore, advise that we affirm the judgment of the General Term, with costs to the respondent, to-be paid out of the estate.

All concur.

Judgment affirmed.