Spofford v. . Pearsall

*65 Andrews, Ch. J. I shall briefly state the reasons which, in my opinion, justify the affirmance of the judgment below. The matter in controversy relates to the true construction of the sixth article in the agreement of settlement, dated June 6, 1891. It is claimed by the appellant that by that article he is entitled to have paid to him or for his benefit from the residuary estate of Paul Spofford, interest at the rate of seven per cent on the trust fund of $150,000 created by the will of his mother, Susan Spofford, from the time of her death on the 18th day of May, 1886, to the date of the agreement of settlement, amounting to $53,025. Or, to state the contention in another form, it is that by the agreement the trust fund of $150,000, created by Susan Spofford’s will, was-recognized and established as a valid charge on the residuary estate of Paul Spofford, together with all the incidents as expressed in her will, including the declaration that from the time of her demise úp to the making up or creation of the trust fund, the bequest “ should bear interest at the rate of seven percent per annum.” The claim on the part of the respondents is that by the true meaning of the agreement the residuary estate of Paul Spofford was to be charged only with the capital sum of $150,000, and that the appellant relinquished al? claim for income or interest up to the date of the agreement. The appellant contends that the sixth article of the agreement contains a clear and unambiguous expression of the intention of the j>art,ies to charge the estate of Paul Spofford for the benefit of Joseph L. Spofford with the payment of the back interest on the trust fund of $150,000, from the time of the death of Susan Spofford, as well as the principal. But the language of the sixth article is certainly inapt if this was the intention. The provision in Mrs. Spofford’s will required that interest should be paid at the rate specified until the trust fund should be established, to be applied “ as if it had been income.” The interest which was temporarily to take the place of income was not in law or fact income. The only income which by the terms of Mrs. Spofford’s will was directed to be paid or ajiplied to the use of the beneficiary of *66 the trust was income accruing from time to time from the trust fund. It is also to be observed that the language of the sixth article is future, viz.: “ income which will become due,” and income thereafter accruing from the trust fund would be income coming “ under the will of Susan Spofiord.” The strong point in favor of the appellant’s contention arises out of the use of the words “ to date,” the language of the clause being “ out of the amount of the income which will become due to him to date under the will of Susan Spofiord,” etc. If the words “ to date ” refer to the date of the agreement, which, it must be admitted, is the natural interpretation, the argument that the income referred to was income which had already accrued, and not income which should thereafter accrue, seems unanswerable. But in interpreting the 6th article, all provisions of the agreement may be considered, and if it shall be found in such examination that the interpretation claimed is repugnant to the scheme of the settlement and to other parts of the instrument, and is opposed to the paramount intention, as disclosed by the agreement as a whole, then the court is to seek an interpretation which shall reconcile the particular clause with such general purpose. The court is not permitted to reject any clause of an agreement for repugnancy, except when the repugnancy is absolute and irreconcilable. It is important in this, connection to consider what was sought to be accomplished by the agreement of June 6, 1891. The primary and controlling object was to settle a family difficulty by a voluntary settlement, which should ascertain and definitely establish the rights of the parties interested in the estate of Paul Spofford. The.estate had, as may be inferred, suffered large losses, and been depleted by the acts and negligence of the executors. The executors had taken from it by way of advances on their shares much more than had been paid to their brothers and sister. The agreement was made to settle the contentions which had arisen between the children of the testator. One of the contentions was that the three eldest sons had received all they were entitled to out of the estate of Paul Spofford. It was also claimed *67 that the two trust funds of $150,000 each, created by the will of Susan Spofford for the benefit of her sons, Gardiner S. and Joseph L., could not be taken out of the estate of her husband under the appointments in her will, for the reason that she had disabled herself to make such appointments by her dealings with the estate in her lifetime. The agreement of June 6, 1891, wns made to finally adjust these and other controversies. It would naturally be expected, therefore, that the rights and interests of the respective parties in the property remaining, and especially of the sons who had been executors, and whose conduct was called in question, would be distinctly defined and limited. By the first article of the agreement the sons, Paul U. Spofford and Joseph L. Spofford, were to resign as executors and trustees under their father’s will, and by the fifth article they were to make no claim for commissions. By the second article they admitted that they had severally received their share of the residuary estate of Paul Spofford. The third article relates to the settlement of the rights of the daughter of Gardiner S. Spofford, and it was declared that she was to receive out of the estate of Paul Spofford the sum of $50,000 in full on account of the trust fund of $150,000 created for the benefit of her father in the will of Susan Spofford. The fourth article of the agreement is very significant in respect to the point in controversy. It deals with the trust provision of $150,000 for the benefit of Joseph L. Spofford contained in the will of Susan Spofford, and is the sole provision in the agreement which directly authorizes an appropriation out of the estate of Paul Spofford for the purposes of that trust. That appropriation is of the sum of $150,000, the capital of the trust, and the article makes no appropriation for the payment of the large sum of $53,025, for back interest now claimed by the appellant. It declares that the subscribing defendants will not oppose the contention of the plaintiffs “ that the sum of $150,000, which by the will of Susan Spofford is made a trust fund, the income of which is to be applied for the benefit of Joseph L. Spofford during his life *68 time, shall he directed by the judgment herein to be paid over to his trustee and be invested and held as directed by said will.” It is quite remarkable if the additional claim for interest was also intended to come out of the general estate, it should not have been provided for in this article. The contention on the one side had been that both the principal and interest on this trust fund should be a charge on the general estate, and on the other that neither the principal nor interest should be so charged. When the parties came in their settlement to deal with this question, they provided for the payment of the principal alone. The sole ground for now insisting that the parties intended that the interest should also be paid, rests upon an inference from the 6th article, which deals alone with a duty to be performed by the appellant towards his sister, for the purpose of equalizing the advances made to them respectively. The 12th article if it stood alone would be conclusive against the claim of the appellant. I quote it in full: “ 12. ISTo claim shall be made by any of the parties to this suit for arrears of income or interest upon any of the trust funds created by any of the wills mentioned in the complaint.” There is no doubt of the general rule, applicable alike to the construction of contracts and statutes, that where a general intention is expressed and also a particular intention incompatible -with the general intention, the particular intention may be considered in the nature of an exception. (Churchill v. Brease, 5 Bing. 178; Hoey v. Gilroy, 129 N. Y. 138.) But it seems to have been the specific intention of the 12th article, construing the article with reference to the wills to which it refers, to exclude any claim for back interest on the trust fund of $150,000. The article relates to all the trust funds under the wills, either of Paul Spofford or Susan Spofford, as both are. set out in the complaint. There were no trust funds under the will of Susan Spofford, except those created for the benefit of Joseph L. Spofford and Gardiner S. Spofford. Indeed, the only strictly “ trust funds ” mentioned in her will were the two funds of $150,000 each. Mrs. Spofford also *69 gave to each of these two sons a share in the one-fonrth part of her husband’s estate, after carving out the two funds mentioned, and also a share in her residuary individual estate. But these shares in both cases were given in trust, and as has been said, no other trusts were created by her will except for the benefit of her sons Gardiner S. and Joseph L. The twelfth article could, therefore, have no meaning so far as it related to the trusts under Susan Spofford’s will, unless it was intended to cut off any claim to back interest on the part of the two sons. The use of both the words “ interest ” and “income ” is significant. The word “interest ” has no appropriate application except to the trust fund of $150,000. Moreover, the whole claim of the issue of Gardiner S. Spofford under the trust in his favor, including interest, was as contemplated by the 3d article to be fixed at $50,000. It would seem, therefore, that the reference in the 12th article to back interest, upon the trust funds under the will of Mrs. Spofford, referred primarily to the trust fund in favor of Joseph Spofford. Bef erring again to the 6th article, it will be seen that its primary purpose was to impose upon Joseph L. Spofford an obligation to pay to his sister, Mrs. Pearsall,' $15,000 for equality of division, which presumably was fixed upon as the sum he had received from the estate beyond what lie was entitled to receive as between himself and his sister. Under the 4th article he would become entitled to the income which would thereafter accrue on the trust fund of $150,000. I think in view of all the circumstances the true meaning of the 6th article is that Joseph L. Spofford should pay to Mrs. Pearsall the sum of $15,000 out of his share in the estate of his brother Eugene and out of income which should accrue to him on the trust fund of $150,000, established by the 4th article, up to the date of the payment of the debt, and he appropriated both resources for that purpose. This construction is not free from difficulty, but it harmonizes all the provisions of the agreement, and it is reached, I think, with less embarrassment than attends the construction claimed by the appellant. *70 The 13th article lends force to the view here taken. But without more extended discussion, in view of the able opinion at General Term, I conclude the consideration of the case. The judgment should be affirmed, with costs. All concur, except Eabl, J., not voting. Judgment affirmed.