Waters v. Waters

Weisel, J., delivered the opinion of this Court. The question in this case arises upon the will of Ereeborn Gr. Waters, and on that clause which disposes of the surplus income of his estates, during the life of his widow, viz : whether the share of an adult child in this surplus income, continues and is transmissible after his death, during the widow’s lifetime, or whether it ceases at such death. The testator provided, by means of a trust, for the annual support of his widow during life, and also during the life of his widow, for the support of his daughter Martha and the support, maintenance and education of his minor children, out of the rents, dividends, income and profits of his estate, real and personal, which he devised to two of his sons, their heirs, &c., upon the trusts and for the uses and purposes limited in the will.

As to any surplus of said income, rents and profits that might remain after the application of the necessary portion to the support of his wife, his daughter Martha and minor children, as he had provided, he devised as follows : ‘ ‘ In trust that the whole of said surplus be equally divided annually amongst all my children who may be of the age of twenty-one years, or who may be married,” with a further direction in regard to an annuity to his daughter Martha in a certain event, as set out in the will. ⁴⁴³ The will was made in June, 1857, and the testator died in July, 1858, leaving eight children ; all over twenty-one years of age at the time of the execution of the will, except two. One of these became of age before the death of the testator, the other afterwards. Four were married when the will was made. In the summer of 1859, one of the sons, John Summer-field Waters, died, leaving a widow and several children.

In August, 1863, Andrew G. Waters, another son, and one of the trustees and executors, died, leaving a widow and four children ; the widow having been appointed his executrix by his will, and having qualified as such. A considerable surplus income arose every year since the death of the testator, Freeborn G. Waters, for distribution. And a large surplus was in the hands of the surviving trustee for the year preceding the filing of the bill in this case in September, 1865. These are the material allegations of the bill of complaint.

The suit is by the executrix of Andrew G. Waters, to prevent by injunction such a distribution of the surplus income in the hands of the trustee, as would exclude the estate of her husband from a participation in the fund. It will be observed that the distribution by the will is an annual one ; words of futurity are used ; and the objects to take are children of the testator, of full age or married ; without any words limiting a share to the representatives or descendants of any child who might die during this course of annual distribution. It is this feature that produces the difficulty in the case. On the one hand it is contended that only those of the children take every year, who are at the time of the distribution in existence and answer the description in the will; whilst on the other it is insisted, as the true construction, that ⁴⁴⁴ the interests in this portion of the income vested in the persons described, and were transmissible in the case of any one who might die during the lifetime of the widow.

The intention of the testator is of course the matter to be inquired into, and, as in all cases of doubt or difficulty, we must avail ourselves of settled rules of construction that are applicable and will aid in the examination. The first and main inquiry is, whether the shares of the surplus income became vested in the children described at the time of the testator’s death, or.when they fell within the class indicated in the will. The subject of the bequests, it is true, is not a part of the integral estate— not the residue of an estate, after other bequests made. It is the surplus or residue of an annually accruing fund from rents and profits of the entire estate, in the hands of trustees collected by them, and held annually for distribution, after providing for the support of the widow and minor children and his daughter Martha, during the widow’s life.

There can be no doubt that in the case of a residue of personalty, or in the case of an annuity during the life of another, the legacy would vest and survive to the personal representative in the event of the death of the legatee before the time of payment, unless a different intention was expressed or conveyed by the will. So if the fund were directed to accumulate and to be distributed and paid at a future day or upon a certain event, and the legatee should die before that time. The