Collin v. Collin

The Chancellor. The proper construction of the residuary clause bf this will is, that all the grandchildren of the testator who were in esse at the time of the death of the testator, or their legal representatives, and no others, are entitled to share in his residuary estate. The general rule is, that in a will of personal estate, the testator is presumed to speak in reference to the time of his death; and not to any previous or subsequent period. A bequest to the [637] children of A. B., as a-class, will, therefore, embrace all his children in esse at the time of the death of. the testator; including children, begotten at-, that, time,though born afterwards. (Rawlins v. Rawlins, 2 Cox’s Cas. 425. Doe v. Claris, 2 Hen. Bl. Rep. 399. 2 Ves.jun. 673; & C.) To limit the bequest in this case to those who answered- the description of grandchildren of the testator at the time,of the, making of- his will, and- exclude those who answered the description at the time of his death, there must be something in the will itself to show that-he meant to confine his bounty to those who were in esse at the date of the will. For, the will being ambulatory until his death, the legal presumption is, that he intended, to include all who should answer the description at that time. Again.; the general rule is, that-where the estate is-to be distributed among a class, at the death of- the testator, those who are in.esse at that-, time, and. no others, are entitled to share in the distribution. But where the distribution is to be made among a class, at.the death of a particularperson, or upon a contingency, or at. any other time subsequent to the death of the testator, all who answer the description at the time appointed for the distribution, will be entitled to share in the fund. (Gilmore v. Severn, 1 Bro. C. C. 582; Prelsford v. Hunter, 3 Idem, 416. Ellison v. Airey, 1 Ves. sen. 111.) And where the language of the will indicates a present bequest of a fund which is to be distributed at a period subsequent to the death of the testator, those who are in esse at the time of his death will take vested interests in the fund; but subject to open and let in others who may come into being, so as to answer the description and belong to the class, at the time appointed for the distribution. It has however repeatedly been decided that where a fund, bequeathed to a class, is to be divided equally among the persons composing the class when they arrive at the age of twenty-one or marriage, only those who shall have been born or begotten when the eldest arrives at the age of twenty-one, or when the first of the.class is married, is entitled to share in the fund. (Andrews v, Partington, 3 Bro. C. C. 401. Prescott v. Long, 2 Ves. [638] jun. 089. Hoste v. Pratt, 3 Idem,, 730. Whitbread, v. Lord St. John, 10 Idem, 152. Gilbert v. Boorman, 11 Idem, 238.) In the case under consideration, eight of the grandchildren were of age at the death of the testator; and three of them at the time of making his will. He therefore contemplated the distribution of the shares of those grandchildren immediately upon his death. And as he directs that all of the class shall take equal shares of the residuary fund, he necessarily excludes those, if any there shall be, who were not in esse at the time appointed for the first distribution ; which in this case was the time of his death. The shares of those who were not then of age are to be accumulated, for their benefit, until the next becomes of age; and then a new distribution is to take place, and so on, until the whole fund is distributed. In this way an equal distribution of the fund will be made among such grandchildren; those who take upon the death of the testator getting their shares immediately, and those whose payments are deferred, receiving the accumulated interest during the suspension of payment; so as to produce perfect equality among all of the twenty-three grandchildren who are entitled to share in the distribution of the fund. For, tjre legacies being vested at the death of the testator, if any of the legatees die before the time arrives for the payment of their shares, their repre sentatives will be entitled to the same. Again ; it would be impossible to carry into effect the intention of the testator, in reference to the accumulation of the interest for the grandchildren, during their respective minorities, upon any other construction of the will. For, by the provisions of the revised statutes, accumulations of interest or income cannot be made except for the benefit of infants who are in esse at the time the accumulation is directed to commence. (1 R. S. 773, ’§§3,4.) A decree must therefore be entered, declaring the construction of the residuary clause of the will to be, that all of the grandchildren who were in esse at the death of the testator, and no others, are entitled to share in the residue of his personal estate; and directing the complainants immediately to distribute to each of the grandchildren who is now of the age of twenty-one, the [639] one twenty-third part of such residuary estate, with the accumulations thereon since the death of the testator; and that they distribute to each of the grandchildren, as they arrive at the age of twenty-one years respectively, or to their representatives, the one twenty-third part of such residuary estate, and the accumulations thereon up to the time of such first distribution which is now to take place, with their respective shares of all future accumulations, according to the directions of the will. And any of the parties interested are to be at liberty to apply, from time to time, for further directions to carry this decree into full effect. The costs of the complainants, and of the guardian ad litem of the infant defendants, up to and including this decree, are to be paid by the executors, out of such residuary estate, before distribution. And the costs of any future applications which may hereafter be made, are to abide the further order of the court.