McCoy v. Horwitz

Irving, J., delivered the opinion of the Court. This appeal involves the construction of the fifth clause of the will of George Bartlett, which is in the following words: “ Fifth. I hereby direct, and my will is, that there shall he paid to each of my said four grandsons, the sum of one thousand dollars, ($1,000,00,) upon his arrival' at the age of twenty-one years, and in case of the death of any one of them before attaining such age, his amount of one thousand dollars shall pass to the survivor or sur ¹⁸⁵ vivors, but if none sba.ll live to attain sucb age of twenty-one years then the said amount of one thousand dollars intended for each shall pass as a part of the rest and residue of my estate ; and I do further direct that my executor shall set aside some security or asset of mine (with power to them and their successors to invest and reinvest and sell) valued by them at four thousand dollars, the income of which shall be applied for the uses and support of my said grandsons during their minority, the principal paid ss hereinbefore directed as they respectively attain the age of twenty-one years.” The question arises in this way. By the will, the testator’s son and his widow (Yashti Bartlett), were made executors.

The son renounced and the widow administered alone. She has died, and the bill in this cause was filed hy Maury McCoy, the appellant, one of the grandsons mentioned in the fifth clause of the will. The allegation of the bill in substance is, that the executrix, Yashti Bartlett, did not, as was her duty to do, set aside “some security or asset” of the estate, valued at four thousand dollars, although the estate was large, and there were many valuable securities which could have been set •aside, but instead invested four thousand dollars of the money of the estate in certain gas stock for the tour grandsons mentioned in the fifth clause, which she placed in the custody of a friend for safe-keeping; that the gas stock had been sold by decree of the Court, and the same had so depreciated in value, that the complainant’s one-fourth thereof amounted to only three hundred and sixty-one dollars and eighty-seven cents, instead of one thousand dollars which by the will he was to have when he reached twenty-one years of age ; which age, the bill charges, he has attained. The bill claims against the administrator c. t. a., of Yashti Bartlett, that the deficiency shall be made up from her estate, as the executrix of George Bartlett, on the theory of a breach of trust in not properly executing the directions of her testator’s will. ¹⁸⁶ The answer denies the construction of the will contended for by the appellant, admits the facts of the case as alleged, but avers that the investment was made “in good faith, and the honest and reasonable exercise ” of the judgment of the executrix, and that her estate is not liable for the depreciation in the gas stock, and the consequent loss to the legatees under the fifth clause.

As the case was heard on bill and answer, the facts are undisputed, including the averment in the answer that the investment was made by the executrix in absolutely good faith, and that the gas stock was selected by her as an investment in the reasonable and honest exercise of her judgment. The intention of the testator being always the primary object to be sought for, it is well to look at the other clauses of the will to see what was the extent of the confidence the testator had in his wife’s judgment and discretion in other respects, as reflecting light upon that conferred respecting the investments for the grandsons. By the second clause of the will he appropriates twelve thousand dollars of certain designated stock, as a- trust fund, in the hands of the executors, to produce an annuity for the persons named in that clause, but gives the trustees, the executors, no power to change the investment. To his only son he gives nothing directly except by way of abating an indebtedness from him to the testator.

He has confidence in the son, for he makes him co-executor, and co-trustee with his mother, wherever trustees are appointed; but greater trust and confidence are reposed in the wife. Manifestly he thought her discretion very superior. By the seventh section this is clearly indicated. It reads thus: “Having entire confidence in the discretion of my beloved wife, and knowing her affection for my son and grandsons, and believing that if she survives me, that she will make a proper distribution of my estate after her death, I hereby give, devise and bequeath ¹⁸⁷ all the rest and residue of my estate, real, personal and mixed, wheresoever situate, unto my beloved wife, Vashti Bartlett, her heirs, executors, administrators and assigns, absolutely and forever.” Thus it is seen that the testator attests the sincerity of the declaration of confidence in his wife’s discretion, by confiding to her management the whole of his large estate, which we are told, and it is conceded in the case, amounts to three hundred thousand dollars.

It is very clear he had no doubt as to her good judgment and discretion as to what investments would be safe and profitable, and most likely to add to the value of the estate. Looking at the fifth clause and the discretion with respect to the power of investment and reinvestment therein reposed in the executors, of whom the wife was one, and after-wards became the sole executrix and trustee, we cannot think the contention of the appellant’s solicitor, that the testator intended his grandsons to have, each, one thousand dollars, on attaining majority, no matter what contingency happened to diminish the value of the securities set aside or afterwards invested in, ought to be sustained. He expected the grandsons to have, each, that amount; and he had no doubt the securities they would select and set aside would