Sanborn v. Clough

Smith, J. It is contended that the words in the fifth clause of the will, “After the payment of all my just debts and funeral charges, and the expense of a proper set of grave-stones,” are a *320 mere repetition of the direction in the first clause to perform a duty which the law would enforce without such direction, and being only verbiage, that the fifth clause may be read as if the words had not been repeated. One objection to this is, that the direction as to grave-stones is not in the first clause; and a more serious objection is, that the construction contended for gives no force to the words “rest and residue.” The testator’s language is, “ After the payment of all my just debts and funeral charges, and the expense of a proper set of gravestones, I order and direct the rest and residue of all my money in banks, stocks, and bonds to be paid to Arthur W. Evans, son of Charles A. Evans, of Kensington, N. H., for his own.” The words “for his own” show that the testator’s intention was to bequeath the property mentioned to the person to whom he directs it to be paid. It is as if he had said, “I give and bequeath the rest and residue of all my money,” &c. By “ rest and residue of all my money in banks,” &c., he meant all his money deposited in banks and invested in stocks and bonds, after payment of his debts, funeral charges, and the expense of grave-stones, or subject to such payment. No other construction of this clause is consistent with the natural and ordinary meaning of the language used. The severed coupons are included in the legacy to Evans. They are in legal effect equivalent to separate bonds for the different instalments of interest. Clark v. Iowa City, 20 Wall. 583, 589; Commissioners, &c ., v. Aspinwall, 21 How. 539, 546 ; The City v. Lamson, 9 Wall. 477, 483; Amy v. Dubuque, 98 U. S. 470. By the sixth clause, he gives to Clough all his personal property except money in banks, stocks, and bonds, which he had already bequeathed to Evans. Clough is residuary legatee of his personal estate, and is charged with the payment of the three money legacies in the second, third, and fourth clauses, and with the expenses of -administration. G. L., c. 203, s. 13. The legacy to Evans vested in him at the death of the testator. The provision as to his reaching the age of twenty-one years is not a limitation annexed to the substance of the gift, but relates to the time of payment. In keeping with this construction is the further provision that if necessary the legacy is to be held in the hands of the executor as trustee for him until he reaches that age. Brown v. Brown, 44 N. H. 283; Ordway v. Dow, 55 N. H. 11. As the legacy vested in the legatee at the death of the testator, the income belongs to him, although the principal may not be payable till he arrives at the age of twenty-one. If the testator’s intention was that the fund should accumulate till the legatee should arrive at that age, we should expect to find it expressed in the will. The absence of any language to that effect is evidence from which a contrary intention may be inferred. No motive appears for permitting so large a sum to accumulate during the minority of the legatee, — a period in his life when the income can be more profita *321 bly expended upon his education and support. The income is payable to his guardian. Case discharged. Bingham, J., did not sit: the others concurred.