Sims's Appeal

The opinion of the court was delivered, by Thompson, J. “ The means, at law and in equity,” says Mr. Ram on Wills 31, “to collect the testator’s intention, are the words of the will, free of conjecture.” Much that has been advanced here, in support of the appellant’s case, is rather of a conjectural character, and we have little to aid us save the words employed in the devise itself. “ I give and bequeath, from and after the decease of my dear mother, the income of five thousand dollars, to my cousin, Mary Key Sims, daughter of Joseph Sims, Esq., deceased; to be paid to her during life by my executors, out of an adequate fund to be retained therefor.” Is this a provision for an annuity of five thousand dollars, or of three hundred dollars, the proceeds of five thousand dollars at regular interest? Were we to adopt the appellant’s view of it, the result would be to withdraw from distribution, and the active purposes contemplated by the will, nearly eighty-four thousand dollars of cash, or productive assets of the estate. There would be no difficulty or hardship in this, if such was the intention of the testatrix. But it seems plain that the words themselves do not import this, and certainly nothing else in the will discloses such an intent. What mean the words “ income of five thousand dollars ?” [347] Their natural import would be that which may be received from that sum. The word “ income” means “ the gain which proceeds from property, labour, or business Bouvier’s Law Diet. When applied to a sum of money, or money in the public debt, it is equivalent to “interest:” Ogilvie’s Imperial Diet., verb. “Income.” When a testator uses technical terms, terms of art, or exact language in regard to anything, their technical or exact import ■will be the rule of interpretation, if not controlled by a manifest intention to the contrary. In this will we have no qualifying or controlling intent that we can discover. Had the indefinite article “ an” income of $5000 for life been the form of the devise, it is agreed it would have caused an annuity of five thousand a year. This would have been a widely different expression; yet the appellant is forced to insist, in order to maintain his position, that the expression “ the income of $5000” means precisely the same thing as “an income of $5000.” While, therefore, we must recognise this great difference in the force of the words used, we must, in the absence of a contrary intent appearing, presume that the difference was well understood, and intended to be made. The additional words, “ out of an adequate fund to be retained therefor,” in no ways control this interpretation. The fund to be retained by the 'executors for the purpose was left to their discretion. It might be money, Stocks, bonds, or perhaps property. Whatever it might be, the directions required it to be adequate above all contingencies for the payment of the annuity ; and this was all, evidently, that was meant by this clause of the will. We are very clearly of opinion that the annual income “of” or from a fund representing five thousand dollars, was what was intended by the testatrix, and is all that the appellant is entitled to under the will, and that the auditor was entirely right in measuring the product of that to be equal to the established rate of interest on the sum of five thousand dollars, viz., three hundred dollars per annum. We need not farther enlarge this opinion by a philological discussion of the words used, or by citing rules of interpretation ; for the reasons already assigned, we are of opinion that the decree in this ease must be affirmed. Appeal dismissed, at the costs of the appellant.