Hooper v. Smith

Page, J., delivered the opinion of the Court. The questions in this appeal arise upon the construction of the second clause of the will of the late W. E. Hooper. Mr. Hooper died in the year 1885, leaving children and eighteen granddaughters. Among the latter were Catherine B. Smith, Georgiana I. Smith and Mary H. Smith, children of his daughter, Mary E. Smith.

Catharine died in January, 1880, aged about two years. Georgiana died in January, 1898, over twenty-one years of age. Mary is still living and under twenty years of age. The second clause of his will is as follows: “ 2nd.

I give and bequeath unto my four sons, William J. Plooper, Theodore Hooper, James Edward Hooper and Alcaeus Hooper, and the survivors and survivor of them and the executors or administrators of the survivor, all other my stocks, whether city, State, national, bank, or of whatever kind or description such stocks shall be, of or to which I shall die possessed or entitled, upon trust for the sole and separate use and benefit, per capita for their natural lives only, of all my granddaughters living at the time of my decease, who shall reach the full age of twenty-one years, and of the surviving issue, if such there be, absolutely, of any one or more of my said granddaughters who shall die in my lifetime or subsequently, but under said age of twenty-one years, such issue, however, to take the share or shares only to which their parent, or respective parents, would have been entitled, had she or they survived me and attained to said age. Upon the decease of such my respective granddaughters, then in trust, as to the share in said stocks of each so dying, to the surviving ⁵⁸² child or children, and surviving issue of any then deceased child or children of such my granddaughters so dying, absolutely, per stirpes. And in default of any such surviving child or issue then upon trust to and for the surviving- sister or sisters, and the surviving issue of any deceased sister or sisters of such granddaughter so dying, absolutely, per stirpes; and in default of any such surviving sister or issue of a deceased sister then upon trust for all my then surviving granddaughters, and surviving issue if any of my then deceased granddaughters absolutely; such granddaughter? taking equally, per capita, and such surviving issue of deceased ones representing their mothers and taking what would have fallen to them had they survived. “ And to the income accruing upon such stocks on the contingent or presumptive share or shares of such of my respective granddaughters as shall be under the aforesaid age of twenty-one years the whole or any part thereof may be appropriated by the trustees for her or their maintenance and education; and so much of said income as shall not be so applied shall be accumulated and added to the principal of the respective shares and disposed of ultimately in the same manner as the principal.” The purpose of the testator in this clause was to provide for his granddaughters by giving them the income of their respective shares, during life, and by securing the principal fund to their issue after their deaths. It cannot be successfully contended, we think, that he intended to give them an absolute estate in any part of the fund, except such as might devolve upon them under the operation of the limitations subsequently expressed in another part of the clause.

The words of the testator are unmistakable — the trustees are to hold in trust for the separate use and benefit of the granddaughters, for “ their natural lives only.” But these words cannot apply to the “ surviving issue ” referred to in the first paragraph of the clause, because as will appear later on, the testator has employed such definite and clear terms as to them that such a construction is not possible. The ⁵⁸³ testator has declared that the trust was created for the sole use and benefit of his granddaughters living at the time of his death and of the surviving issue of “ any one or more ” of his “ said granddaughters ” who shall die in his lifetime or subsequently, and no one who does not come within the classes thus described can be entitled to a share of the funds. Therefore, granddaughters born since the death of the testator cannot take, either as first takers or by way of remainder. The, testator in