[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 560 The principal question to be determined arises upon the construction of that part of the will which gives legacies to the testator's granddaughter, Mary Emeline Tyson, and to his grandsons, Aaron, Edwin, and Richard Tyson.
The bequest is of one-fourth of the net proceeds of the testator's estate which should remain, c., to each of such grandchildren, the whole to be equally divided among them, share and share alike. But in case the said Mary Emeline should die without lawful issue, then her share was given to the three grandsons mentioned, to be equally divided among them, share and share alike, and to their heirs and assigns.
It is claimed, in behalf of the defendants, that the limitation over of the share of Mary Emeline, in the event of her dying without issue, to the three grandsons, is void, as being repugnant to the gift to her of the one-fourth of the net proceeds of the estate. But we do not think so.
The provision, called the limitation over, is nothing other than a qualification of the previous gift to Mary Emeline, and shows the intention of the testator to have been that she should take, in the contingency named, a life estate only in the legacy thus given to her. It amounted to an executory bequest of her share to the three grandsons. If she died without issue, then they became entitled to her share absolutely. If she should die leaving issue, then such issue would take her share absolutely.
There is, in fact, therefore, no repugnancy in the limitation over, the language employed being merely expressive of the intention of the testator *Page 561 to make a disposition of the share of the granddaughter in the event of her dying without issue, different from what the law would make if she should die leaving issue.
In the late case ofNorris v. Beyea (3 Kern., 273), Judge DENIO, who delivered the opinion of the court, uses the following language: "There is, in truth, no repugnancy in a general bequest or devise to one person, in language which would ordinarily convey the whole estate, and a subsequent provision that, upon a contingent event, the estate thus given should be diverted and go over to another person.
The latter clause, in such cases, limits and controls the former, and when they are read together, it is apparent that the general terms, which ordinarily convey the whole property, are to be understood in a qualified and not in an absolute sense." Mary Emeline having died without issue, her share of the net proceeds of the testator's estate went, according to the terms of the will, to the three grandsons, Aaron, Edwin, and Richard Tyson.
If these views are correct, the executors of the testator would have the right to withhold from Mary Emeline any portion of the principal of her share of the net proceeds of the estate, unless adequate security was given, or tendered, to account for the same in the event of her dying without lawful issue, together with interest thereon from the time of her death. She was entitled to the usufruct of the legacy during her life, and to nothing more.
The advances to her guardian, referred to in the bond upon which the action was brought, were doubtless of the principal of her share; at least, nothing appears or is claimed to the contrary, and we are not to intend, in the absence of evidence, that the guardian would give a bond to refund what his ward was clearly entitled to receive and retain as her own absolutely.
The bond was, therefore, precisely such a one as the executors were entitled to require upon advancing to Mary Emeline, or her guardian, the principal of her legacy, or any part of it. The appellants make the further point that the action is not brought in the names of the real parties in interest. We are of the opinion, however, that the executor is the only party *Page 562 who could sustain this action.
The will requires the executors, or the survivors or survivor of them, immediately after the testator's death, to convert his estate, real and personal, into money, and after payment of debts, funeral expenses, and the legacy to the Dutch Reformed Church, the whole of the net proceeds which should remain is given to the four grandchildren of the testator, as before mentioned, and in the manner before specified.
This clearly implies that the net proceeds of the estate must all come into the hands of the executors before it can reach the legatees. The former can, manifestly, pay it out to the legatees in no other manner or proportions than the will, by its legal effect, contemplates. Mary Emeline, as before shown, was only entitled to the use of one-fourth of what should remain of the estate, and not to the principal.
If they should pay her more than she was entitled to receive during her life, they would be accountable for it. The executory legatees of the principal, of which she was entitled to the interest, could never look to her or her executors for such principal. There would be no privity between them, and they could only look to the executors of their grandfather. (Code, §§ 111, 113.) The foregoing views lead to an affirmance of the judgment below.
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