Estate of Noble

Opinion by Mr. Justice Mitchell, The learned auditor was of the opinion that the separate use trust created by the testator for the legacy to his daughter, Mary Patton, was intended only for her protection during coverture, and he held therefore that the legacy became hers absolutely upon the death of her husband. [193] But this does not give effect to the full intention of the testator. After charging the residue of his estate in the hands of three of his sons with legacies of $8,000 each to his four daughters and his son James, the will provides that “ as to the bequest to my daughter Margaret I direct my executors to vest the same on loan or stock as they may deem best and pay the proceeds thereof to my daughter for her sole and separate maintenance and that of her children during her life, and after her death I bequeath the same to her children absolutely, her receipt for the proceeds to be taken by my executors. As to the bequest to my daughter Mary Patton I direct that my executors shall vest it in the same way and pay the proceeds to her separate maintenance and take her separate receipt therefor.” Had the will left the subject without further expression, there would have been strong ground for the view that the testator’s sole object was a separate use to protect Mary’s share from her husband and his creditors, though even then it would not have been entirely free of doubt whether the words “ vest it in the same way ” might not have been meant to cover the estate that was to pass, as well as the mode in which it was to be invested, the intent being apparently to assimilate Mary’s share generally to Margaret’s, which was for life only, and the trust as to her being to preserve remainders as well as for separate use. But the testator did not leave the subject here, though he interjected at this point certain provisions as to his son James and his brother William, with which we are' not concerned. But he then returns to Mary’s legacy and provides that “ if my daughter Mary Patton should die without issue then the bequest to her to go to my other daughters, share and share alike, subject to the limitations and directions as are made herein as in their bequests.” This must be read continuously with the previous clause on the same subject directing the investment of Mary’s share in the same way as Margaret’s, and so read, it makes plain the testator’s intention that the provision for both daughters shall be the same, to wit: a separate use for each to herself during her life, with remainder expressed to Margaret’s children, a like remainder implied to Mary’s children, if she should have any, and a plainly expressed devise over to her sisters upon her death without issue. With the long line of cases which hold that after an absolute [194] gift, restrictions sought to be imposed upon the incidents of ownership are ineffective, or the other cases where a devise over upon the .death of the first legatee is held to mean such death in the lifetime of the testator, we have nothing to do. The whole will taken together as to the parts which relate to this legacy shows that the gift was not absolute, and the testator’s intent to that effect being clear, we do not need to resort to rules of construction, nor do we get much light from what other testators may have meant by more or less similar language used under different circumstances or in different connection. It is therefore unnecessary to discuss the numerous cases cited by both parties in their arguments. Decree reversed with costs and distribution directed to be made in accordance with this opinion.