Campbell v. Robertson

Bleckley, Justice. ■ The several items of the testator’s will which bear on the question before us are the second, third, fourth, fifth and ninth. These, for a better understanding' of the exact point to be decided, I copy from the record, omitting of what is contained in them only descriptive clauses, and one or two special directions as to small articles of property : Item 2, “ I devise and bequeath unto my wife Mary Robertson, all my property at my death, both real and personal, heretofore or hereafter acquired, for the term of her natural life Item 3, “ I devise and bequeath unto John B. Campbell, of said county, subject to said life-estate of my wife, certain real estate in said city, to-wit: (four described lots, with the improvements thereon) to have and to hold the same, from and after the death of my said wife, in trust for the support, maintenance and use of my daughter Mary Kirkpatrick and her children heretofore and hereafter born, for the term of her natural life, free from the contracts, liabilities and control of her present or any future husband ; and at her death in further trust to equally divide the same and convey it in severalty to her children living at the time of her death;. or the lineal representatives thereof, per stirpes; and in default of such children and representatives thereof, in trust for the children of my son William H. Robertson living at the time of her death, or the lineal repreresentatives thereof, per stirpes, and such children as may be born to him thereafterItem 4, “ I devise and bequeath unto Lucius A. Luke, of the county of Columbia, and said John B. Campbell, subject to said life estate in my wife, certain other real estate in said city, to-wit, (eight described lots, with the improvements thereon) to have and to hold the same from and after the death of my wife, for the support maintenance and use of the present or any future wife, and the children heretofore or hereafter born, of my son William H. Robertson, for the term of his natural life, free from the debts, contracts, liabilities and control of said [715] William; and at his death, then to equally divide the same among and in severalty convey to his children living at the time of his death, or the lineal representatives thereof, per stirpes; and in default of such children and representatives thereof, then in trust for the children of my said • daughter Mary, living at the time of. my said son’s death, or the lineal representatives thereof, per stirpes, and such as may be born of her afterwardsItem 5, “ I expressly direct that such trustees do not encroach upon the capital, and only use the income of said trust estate for the beneficiaries thereof, making such reasonable differences in expenditures and allowances for each as occur in families in like condition, without accountability between them therefor Item 9, “ I devise and bequeath after the death of my wife-the rest and residue of my property, and all the property aforementioned or the proceeds thereof, not hereinbeforeotherwise disposed of, of every description, unto my executors, executrix, the survivors or survivor, or acting one thereof, to have and to hold- the same in trust to and for the use, benefit and behoof or all my grand-children, per capita, heretofore or hereafter born, the survivors or survivor of them, until majority or marriages, and as each one arrives at the age of twenty-one years or marries, then to take out and convey to him or her in fee simple one-equal share therof, according to the number' then entitled upon their majority or marriage; and if the last one so entitled shall die before majority or marriage, then at th& death of such one, this last share shall be equally divided and conveyed to the said grand-children surviving, o.r the representatives thereof per stwpes.” The 6th and 8-th items-authorized the sale of certain property. The will was made on the 11th of November, 1873, and the wife of testator was named as executrix, together with John B. Campbell and John- T. Shewmake as executors. The executrix and tenant for life died in 1875. This bill was filed on the 13th of September, 1877, the parties thereto being as stated in the report. At the trial the jury, in [716] answer to certain questions, found specially that the income from the property embraced in the specific devise was not sufficient for the maintenance and support of the complainants, that they had not received from their father or any other source sufficient maintenance and support to render this bill unnecessary; that their father was not likely to be able to contribute anything to their support; and that the whole of their share of the income in the hands of the executors from the property passing under the ninth item of the will, less the proper allowance for debts and expenses, ought to be paid and continued to be paid. Thereupon, the court decreed as set forth in the reporter’s statement, ■end the executors excepted. There is no scarcity of learning on the right to take income where delivery of the corpus is postponed, and where it is uncertain whether all the class named as beneficiaries will ultimately share in the distribution, or whether some of the individuals among them will drop out. The general tenor of the authorities seems to be, that if the estate is once vested, though it may be subject to become divested, those in whom it is vested for the time being are entitled to the then accruing income. As more or less relevant, consult 2 Ashmead, 332; 5 Binney, 477; 6 Paige, 136; 11 Ib., 125; 5 Vesey, 193, note; 11 Ib., 48, 202, 604; 12 Ib. 20, 204; 14 Ib., 203, 577; 4 Madd., 275; 7 Sim., 523; 2 Swanst., 436; 2 Mer., 363; 3. Ib, 340; 10 Barb., 552-7; and read (first referring to the index for the proper places,) about two per cent, of Roper on Legacies, and about one per cent, of Perry onTrusts. Without undertaking to reproduce or discuss any of the decided cases, or any of the text writing founded thereon, it is sufficient for our present purpose to say, that the design of the ninth item of the will before us was to keep income and corpus together, and distribute to each beneficiary ¿is share of both at the same time. The clear intent of the testator in this part of his will was to nurse a fund out of which to furnish a portion to each of his grand-children when he or she should arrive at majority or [717] marry. .None but such as fulfilled the condition of majority or marriage would be entitled to participate. The words, “ to have and to hold the same in trust to and for the use, benefit and behoof of all my grand-children, per capita, heretofore or hereafter born, the survivors or survivor of them, until majority or marriage,” are, when construed with their immediate context, the same in meaning as if the testator had said, “ to have and to hold the same in trust to and for the use of such, and such only, of my grand-children, per capita, heretofore or hereafter born, as shall attain majority or marry.” The legal title is put in the executors as trustees, and they are not only to “ take out ” an equal share for each beneficiary at the appointed time, but they are also to “ convey ” it. Is the share which the executors are thus directed to take out and convey to be ascertained by looking at the corpus only, or is it to be ascertained by computing both the corpus and the income ? It seems to us that the latter is the mode contemplated, and if so, the'in come is as effectually tied up as the corpus; the two are inseparable.' One of the grand-children has already attained majority, and the rest are minors. Every one of these minors may fail either to marry or to survive their minority. In that event, the grand-child’ now of age would prove the sole owner of the whole fund unless other issue should spring from the testator’s son or daughter and survive till majority or marriage, or unless this eldest grandchild should die before the last survivor of the others. In this latter case, the representatives of the adult grand-child (that is, the great grand-children of the testator) would take the whole. It is thus apparent that every one of the complainants in the bill is subject to be superseded, not only by the adult grand-child, but by grand-children yet unborn, and even by great grand-children of the testator. If, therefore, maintenance were allowed to the complainants out of the fund, whether out of income or corpus, there is no certainty that they would be eating their own bread, and not the bread of their brothers and sisters, their nephews [718] or nieces, their cousins or second cousins. It is true the complainants are apparent or presumptive owners, but that does not warrant present consumption. They must wait for their inchoate right to ripen by time into a perfect and complete title. Any doubt which might be entertained upon the construction of the ninth item of the will, regarded by itself, is dispelled by looking back to the third and fourth items. In these, the testator has dealt for himself with the question of support for his grand-children, and has made express provision for it, as far as it was his pleasure to do so. The decree was erroneous, and must be vacated. Judgment reversed.