Barker's Appeal

The opinion of the court was delivered, by Agnew, J. — An examination of the entire will of Thomas A. Barker leaves no doubt in our mind that the final provision for his widow, Mrs. Eliza O. Barker, was vested and not contingent. After making sundry bequests to his children as memorials, and to his sister one of $200, he begins the general distribution of his estate in these words: “ Of my remaining worldly possessions and goods, real and personal, I do hereby make the following disposition.” He thus declares his unequivocal intent to dispose of all his worldly estate, and to die intestate of none, an intent which is frustrated, as we shall hereafter see, if the final bequest to Mrs. Barker be contingent and not vested. He then bequeaths to his wife Eliza all his household and kitchen furniture. The next thing he does, not however in the order set down in his will, for its [425] arrangement is not orderly, is to create a trust of'all his estate real and personal, with large powers conferred on his trustee in its management, conversion and final sale. This trust, it is to be believed, began immediately, and embraced all that was comprehended under the terms “remaining worldly possessions and goods, real and personal,” excepting perhaps the household and kitchen furniture, which went directly to Mrs. Barker. The trust was then devoted to the bequests and purposes of the testator’s will. The next purpose of the testator was a temporary provision for his widow and children during their minority, or until the widow should again marry, a thing which he deprecated, and desired her not to do for the sake of his children; but in case she did so, he directed that this provision should cease, and that the dwelling-house and money constituting the temporary provision should fall back into his general estate, of which the widow and children should “ then receive their portions in lieu thereof,” indicating thereby clearly his intention to make a final, fixed, and vested provision for both widow and children. They are linked together both in the temporary and in the permanent provision in such a manner as to forbid the belief that the provision for the children should be absolute, and that of the widow contingent. This is not an inference only, for when he comes to the permanent provision for his widow out of the proceeds of the real estate, he says in express words: “ The one-third portion thereof shall be paid absolutely by my said executor (the trustee) to my said wife Eliza, in lieu of the previous specific provisions for her maintenance.” Thus if the temporary provision were absolute and not contingent, of which there can be no doubt, for it was to take effect immediately on the testator’s death, the permanent provision could not be less absolute, for it was to be in lieu of the former, which was for the express purpose of maintenance, a purpose clearly not intended to be contingent. Another indication of the testator’s intent to make the permanent provision for his widow absolute, is the fact, that though he deprecated her marriage as likely to interfere with her attention to the care and education of his children, yet he made this provision expressly for her marriage; and not conditional or dependent merely, for she was to have the provision at all events on Frank’s arrival at age. Thus marriage was only to precipitate a bequest concededly absolute in her on the arrival of Frank of age, if she then continued a widow. Besides, if the bequest were purely contingent on marriage, it would be an inducement to her to marry speedily, a motive the testator clearly did not intend to hold out to his widow. There is still stronger reason to show that the provision for Mrs. Barker wras not contingent. As we have seen, the testator did not intend to die intestate of anyportion of his estate, a result certain to take place if the provision for her [426] is contingent. In the paragraph of the will making distribution among the children, the testator directs his executor, as trustee, to sell his personal property, and convert it into money, to which fund all other moneys (enumerating various sources) “ together (ha proceeds to say) with the portions of my said children derived from the sale of my real estate as hereinafter determined under the provisions of this my will, shall be added, and the aggregate shall be a fund of final distribution,” which he then proceeds to make among his children. These portions of the real estate, it will be seen in the next paragraph are but two-thirds and not the whole oi the proceeds of the real estate. Coming to the next paragraph, he proceeds to direct the sale of all his real and personal estate, whenever his wife marries or one of his children arrives of age; and the money, he proceeds to say, “ shall become a like final distribution fund as hereinbefore set forth, and that of the remaining proceeds and accumulations of real estate devised to my said executor in trust, sold and to be sold, the one-third portion thereof shall be paid absolutely by my executor to my said wife Eliza, in lieu of the previous specific provisions for her maintenance, and the two-thirds portion of the residue shall go to my children as hereinbefore provided.” These are the “ two-thirds portion” which in the preceding paragraph he had added to the personal estate, and formed into a final distribution fund, divided among his children. The consequence therefore is, that the one-third of the proceeds of the real estate allotted to his wife is wholly undisposed of, if not vested; for there is no provision or bequest over of this third, upon the supposed contingency not happening. If therefore Mrs. Barker died unmarried and before the arrival of Frank at age, the testator has made no disposition of this third. But this is contrary to the declared intention of the testator, to dispose of all of his estate, and to give the one-third of the real estate absolutely to his wife in lieu of the temporary provision for maintenance, and the specific bequest of- two-thirds only of the real estate to the children. In this connection we may notice also, that the will contains no other residuary clause than that already mentioned, and of which the bequest to the widow is itself a part. Upon the whole will, we cannot doubt that the permanent provision for Mrs. Barker vested at the testator’s death, but was delayed in the time of the enjoyment until her marriage or the arrival of Frank at majority. / Decree affirmed with costs to be paid by the appellants.