Drake v. Pell

The Vice-Chancellor : I have carefully considered this case; and examined most of the authorities which have a bearing upon it. Upon the first question submitted, whether the nine children of the testator (all of whom survived him) took vested interests in the residue of the real estate devised or in the produce of it, and if so, from what time 1 I am of opinion, that, according to the true construction and intent of the will, the rights and interests of the children did not vest and become absolute nntil the youngest child attained the age of twenty-one years. This is the time fixed for the sale or partition of the real estate, and their interests were contingent until that period arrived. The devise to the executors carried the fee to them in trust, and the only beneficial interest which vested in the first instance and took effect at the death of the testator, is the interest in the rents and profits, under the trust for the purpose of maintenance ; and, until the time for a sale or partition, no further equitable interest or ownership in the children became absolute. The principal or capital of the residue of the real estate devised to the executors in trust, that is to say, the beneficial interest or ownership in it, was not given away, but remained undisposed of until the youngest came of age. Even when that period arrived, the will contains no express gift in terms to the children, though the direction to the executors to sell and divide the proceeds equally between the nine children, or to make partition and convey to them, imports and carries with it a gift. The time appointed for doing this, however, is — 268 — here of the substance of the gift, and not for carrying a gift-previously made or expressed into effect. It is not the case of an immediate gift, which takes effect from the death of the testator, and where time allowed for realizing the benefit of it operates merely as a postponement of payment or of the enjoyment of the property given. It is argued against this conclusion and in favor of a vested interest in the nine children! from the death of the testator, that it is a gift to them in remainder after a particular estate carved out, viz : during the minority of the youngest child ; and that, in such cases, the interests of the first and subsequent takers vest together. But there are exceptions to this general rule, where, from the plan and context of the will, it is clearly shown that the testator did not intend any interest in the principal or capital to pass (where he has disposed of the interest or dividends only for a particular purpose) during the continuance of the particular estate. And this will be the case, says Roper, where “there is no disposition of the capital distinct from the period appointed for the payment or distribution of it, viz., upon the death of the tenant for life 1 Roper on Leg. 396, pl. 3. In addition to the case of Billingsley v. Wills, 3 Atk. 219 ; Thickness v. Leige, 3 Bro. P. C. 365, and others cited by Roper, as illustrating his remarks, and in support of that position, other cases may be referred to, containing the principle and bearing a strong analogy to the present. Houghton v. Whitgreave, 1 Jac. and W. 145, is of this class, as also are Pope v. Whitcombe, 3 Russ. 124, and Howes v. Herring, in the Exchequer, 1 McClel. and Younge, 295 ; and Adams v. Beekman, 1 Paige, 632, seems to me a decisive authority on this point. With the principle of these cases in view, the will under consideration cannot, in my judgment, be read as conferring absolute vested interests on the children until the youngest of them or the youngest surviving child should attain the age of twenty-one, though, before that period, the elder children might severally arrive at that age. I think this follows from the clauses of the will containing the substitutional bequests, in case of the death of any of the children. The first, second and third of these provisions of the will are clearly substitutional bequests, and intended to prevent a failure or lapse, on the hap — 269 — pening of either of the events there specified; nor can 1 perceive any sufficient reason for distinguishing the fourth and last of these from the preceding and giving to it a character and effect altogether different. The event spoken of, in this clause of the will, has happened to four of the testator’s children, they having died after the testator and after having respectively attained the age of twenty-one years. The words of the will are, “ And in case any of my children shall die after me, and after having attained the age of twenty-one years, then the share, portion or interest of the child so dying, shall go to the heirs, devisees or legal representatives of the child so dying.” Dying after the testator, and after having attained the age of twenty-one years, must be understood here as a contingent dying, an event which might or might not happen, and not that inevitable event of death which was sure to happen after the child had survived the father and passed the age of twenty-one. The gift intended, as I have already considered, was a gift to take effect when the youngest child came of age ; and the object of this clause of the will, as well as of the preceding clauses, was to provide against a contingency which might happen to defeat the gift as to some of the children : viz., a dying after the testator and after the child had arrived at the age of twenty-one, but before the youngest had attained that age ; or, in other words, before the period fixed for the distribution of the estate. This is clearly the object and meaning of this part of the will; and if it be necessary, in order to effectuate the intention of the testator and to render the will consistent and harmonious in all its parts, the court will supply words or will construe those used in such a way as to render the whole sensible. In the present case, there is no.difficulty in understanding the event spoken of or referred to as a death which might happen after the testator’s, and after the child had arrived at the age of twenty-one, but before the period for distribution or the full age of the youngest surviving child. Galland v Leonard, 1 Swanst. 161, is directly in point on this subject. Next, in regard to the words, “ then the share, portion or interest of the child so dying shall go to the heirs, devisees or legal representatives of the child so dying.” In the events which have happened in relation to the four children, who have — 270 — died since their father, after they had become twenty-one years of age and before their youngest brother had attained that age ; I consider these words of the will as substituting other persons to take in their steads, and “heirs,” “devisees,”and “ legal representatives,” in the sense and meaning of this will as words of purchase and not of limitation. These words designate classes of persons to take, not derivatively from or under any child or children of the testator so dying or in their right, except as to the amount of the share or portion of the estate devised, but in their own right as devisees, under a new and distinct gift, in the place of the gift intended for the first taker which has failed by his or her death ; and those persons who answer to the description of heirs, devisees or legal representatives of a deceased child of the testator, having regard to the nature and character of the property, are the persons now entitled to take under the will, as the substitutes. If the property passes or is transmitted as real estate, those who would be the heirs at law of the deceased child, are the persons meant and entitled to a one-ninth share of the lands so devised. If the child so dying has made a will, after he or she so dying had become twenty-one, the devisees named in that will would take the share, provided it is embraced in the latter will. For I am of opinion, that by designating devisees of a deceased child, as persons to take, a power of appointment by will was given to such child after he or she had become twenty-one, as before mentioned, and to say to whom the share intended for such child should go; and that the person or persons answering to the description of such devisees are entitled, by virtue of such appointment, whether the property be real or personal estate. And with respect to the words “ legal representatives,” if the property transmitted be personal estate, the persons designated by and answering to this description are those who, by the statute of distributions, are known as the next of kin, and not the executors or administrators of a deceased child : Bridge v. Abbot, 3 Bro. C. C. 224 ; Barnes v. Ottley, 1 Mylne and K. 465 ; Palin v. Hills, 1 Mylne and K. 470. The testator doubtless meant those who should take beneficially to themselves as owners, and not in a mere official or representative capacity in the right of the deceased child. Hence executors — 271 — or administrators are excluded ; and though the property may be persona], and they, in one sense, may answer to the description of legal representatives, they are not in this case the persons intended. In the views thus far expressed, I believe I have sufficiently disposed of the first and third questions propounded by or on behalf of the complainants. The second question submitted by the pleadings is, whether the shares devised to the children of the testator, and to those who, under the foregoing construction of the will, are entitled to take substitutionally, are to be deemed real or personal estate? The executors having sold and converted the real estate into money, as they were authorized to do, and they being directed to divide the proceeds among the nine children, and as it is the produce arising from the sale which they now take, I am of opinion that they receive the same as personal estate. In Smith v. Claxton, 4 Mad. 492. Sir John Leach, M. R. laid it down as a rule, that where a devisor directs his land to be sold and the produce divided between A. and B., the obvious purpose of the testator is a sale, for the convenience of division, and A. and B. take their several interests as money and not as land. That such is the case here appears indeed to be conceded by the counsel on both sides in their argument. The proceeds of the property, as far as sold, after reserving enough to raise the annuity given to the widow for life, the executors must divide into nine equal parts and pay over to each of the five surviving children of the testator their respective shares. The husbands of the two married daughters living are entitled, in the right of their wives, to receive their shares, but the payments had better be made upon the joint receipts of the husbands and wives. With respect to the share of the deceased daughter Hannah, (Mrs. Lounsbury), at her death, her two children became entitled, as the devisees in her place, upon the principles which I have stated ; and their father has no interest whatever, either as tenant by the curtesy or otherwise, in their mother’s rights in this share. As the general guardian of his two children, the money may be paid into his hands, upon his receipt and acquittance, to the executors. So, with respect to Benjamin Joseph Pell’s share, who died intestate, leaving a wife and two infant children. The — 272 — two children are to be deemed the devisees under the will, instead of their deceased father ; and their mother has no right jower or other interest in this share, nor has the administrator of their father or his creditors any right to interfere with the money. A guardian should be appointed, if there be not one already, who will have to give the requisite security; and can then receive it for the children. The share of John Pell, junior, has probably passed, by virtue of the appointment of his will, to his widow, Elizabeth Pell, as the substituted devisee in his place. I have not the will before me, but if it be found to embrace the share which was intended for him by his father’s will, the executors will oe safe in paying over that share directly to her. The executrix of that will has nothing to do with the receipt of the money. George Warren Pell’s share, who died intestate, without issue and was never married, goes to his next of kin, as a class of persons to take as devisees in his place ; and these must be ascertained by reference to the statute of distributions. His administrator has nothing to do with this share, in his capacity of administrator. A decree may be entered, declaring the rights of parties, as herein explained ; and the costs of all the parties to the suit must be paid out of the proceeds of sale in the hands of the executrix.