Stein v. Stein

Page, J., delivered the opinion of the Court. This appeal is from the pro forma decree of the lower Court upon a special case stated. Samuel Stein by his last will, after making certain bequests, devised as follows: “All the rest, residue and remainder of my estate and property, of every nature and kind, whether real, personal or mixed, wheresoever situate, as well that which I now have, as that which I may have, be possessed of, or in any manner entitled to at the time of my death, I order and direct my executors hereinafter named, or the survivor or survivors of them, to divide into four equal parts or portions.” He then devises and bequeaths “ one of said equal parts or portions ” to his wife Annie Stein, his son Simon H. Stein, and his son-in-law Harry Friedenwald, and the survivors of them, &c., in trust, for the sole and separate use and benefit of his daughter Bertha Friedenwald for life, “so that she be suffered and permitted for’ and ⁴⁶⁶ during the said term of her natural life, to have, hold, possess and enjoy the same, and every part thereof, and to receive the clear rents, issues and profits therefrom, without, however, the power of anticipating, charging or in any manner encumbering said clear rents, incomes or profits, and so that neither the said property nor the rents, &c.”; and, at the death of said daughter, in further trust to convey and assign the “said one-fourth part, share and share alike,” to all her children then living and the issue or descendants of any deceased child, &c., &c. Each of the three other equal parts or portions, by separate clauses, being the sixth, seventh and eighth, are then successively devised and bequeathed upon the same terms to the same trustees in like trust for the benefit of his sons Louis and Simon and Julian Stein respectively, and their children and their issue.

By the tenth clause power is given to the trustees and their successors in the trust, “from time to time, as they may deem it expedient and for the benefit and advantage of my estate, to sell and dispose of, grant, assign or convey such portions of my estate as may be necessary for the purpose of making changes of investments thereof, &c.” By the eleventh clause provision is made for the safe keeping of his securities; they are to be kept by the trustees in a safe deposit box, and not to be taken from it except in the presence of at least two of his trustees.; and finally he appoints the same persons whom he had already named as his trustees, to be his executors. This will, like all others, must be construed so as to effectuate the intent of the testator, unless some clear rule of law makes it impossible so to do. We think it clear from the terms employed that the testator intended his property to be divided into four equal portions, and to be held as four several and distinct trusts. His language is too explicit for doubt: “All the rest and residue and remainder of my estate and property, of every nature and kind .... 1 order and direct my executors hereinafter named .... to divide into four equal parts or por ⁴⁶⁷ tions,” and then “one of said equal parts or portions” he devises and bequeaths to his trustees in trust for his daughter Bertha, &c.; one other of said “four equal parts or portions ” in trust for his son Louis, &c.; “ one other ” in trust for his son Simon; and the “remaining one” in trust for his son Julian; and in each case he directs that immediately upon the death of the cestui que trust, the trustees are to grant, assign, transfer and convey said “