Hughes v. Pennington

Boyd, C. J., delivered the opinion of the Court. This is an appeal from a decree construing Item 12 of the last will and testament of Catharine Harper, deceased. That item is as follows: (a) “In regard to the one undivided third part of the residuum of my estate, alluded to in the 10th item of my will, I give and bequeath the net annual income thereof to my granddaughter, Emily L. Pennington, for her sole and separate use, for the term of her natural life, to be paid over to and received by her as it shall become due, and without any anticipation of income. (b) “And after the decease of my said granddaughter, if she should leave a child or children then living, or the descendants then living of a child or •children who may have died before her, it is my will ¹³⁰ that the income of the said third part, as it shall be- ■ come due, shall be applied to the support, maintenance and education of such child, children or descendants, per stirpes, for the term of twenty-one years after the death of my said 'grand-daughter, or until the youngest child of my said granddaughter living at her death (or if she leave no child living at her death, then until the youngest of her grandchildren living at the time of her death) attains the age of eighteen years, if a female, or twenty-one years, if a male, whichever shall first happen; and that the principal of said third be then distributed amongst them per stirpes (e) “But should my said granddaughter not leave descendants living at her death as aforesaid, or should all of such descendants, if any she leave living at her death, die within twenty-one years after her death, then and in such ease the principal of said third part shall go to and vest in my daughter, Emily L. Harper, if then living, and if my said daughter be not then living, the said third shall go to and vest in such persons as she may by any testamentary paper appoint, and if she does not specifically make such appointment, then her residuary legatees shall be taken and considered as such appointee.” Eor convenience of reference we have marked the above clauses (a), (b) and (c), although they are not so marked in the will.

The petition asking for the construction of the will was filed by Thomas Hughes, Trustee, R. G. Harper Pennington and his children, and Olapham Pennington and his children. The trustees under the will of Catharine Harper having died, Thomas Hughes was appointed as their successor. Mrs. Pennington died on the Yth day of January, 1908, leaving surviving her two sons, R. G. Harper Pennington and Clapham Pennington, both of whom have long since passed the age of twenty-one years, but leaving no other chil ¹³¹ dren or descendants of any deceased child or children.

II

G. Harper Pennington executed a deed of trust to Thomas Hughes, Trustee, for the benefit of his children, of one-half of his interest in the estate, until the marriage of said children, and all of them are still unmarried. The petition states that Thomas Hughes, Trustee, entered into a contract for the sale of what is spoken of as the Stellburg property, and counsel for the purchaser had declined to accept said property, on' the ground that the remainder created by the 12th item of the will of Mrs. Harper, to take effect after the death of Mrs. Pennington, is under the terms cf the will liable to be divested in the event of the death of all the descendants of Mrs. Pennington within twenty-one years after, her death, and that the power conferred by the ■will of Mrs. Harper upon her daughter, Emily Harper, to appoint by her will the persons to take said remainder was not validly executed, or, if validly executed, would not be effective for reasons therein set out, but which are not necessary for us to state by reason of our construction of the will of Mrs. Harper. Mr. Alex. H. Robertson, Auditor and Master, to whom the case was referred, reported that in his opinion R. G. Harper Pennington and Clapham Pennington are entitled to absolute vested interests under this clause of the will, and the Court decreed as follows: “That by the proper construction of the will of Catharine Harper, deceased, the obligation now devolves upon Thomas Hughes, Trustee, in consequence of all the children of Emily L. H. Pennington, deceased, being over twenty-one years of age, to distribute between her two sons, R. G. Harper Pennington and Clapham Pennington, equally, the estate in the hands of said trustee, and he shall so distribute the same accordingly, selling so much as he shall find necessary for such distribution, whereby there shall be distributed to and received by the said R. G. Harper Pennington one-half of said estate, and Clapham Pennington the remaining one-half of said estate, each for his own use, and as his own property absolutely, except,. however, that the said trustee shall retain ¹³² in his hands, pursuant to the deed of trust to him from the said E. G. Harper Pennington, in favor of his children, one-half of the said E. G. Harper Pennington’s share.” From that decree the trustee, by authority of the lower Court, took this appeal.

In our judgment that decree is clearly right. If clause (h) stood alone, there could he no possible question about it. Mrs. Pennington, the life tenant, died leaving two sons and no descendants of a deceased child, and hence the income of the said third part, as it became due, was applicable to the support,