Campbell v. Gilbert

The opinion of the court was delivered by Kennedy, J. It is too plain to admit of a question, that the seven hundred arid fifty-five dollars and fifty-six cents is given by the first clause of the will, in which it is mentioned, to the wife of the testator absolutely. Bht it is contended by the counsel for the plaintiff in [77] error, that the testator, by a subsequent clause, has manifested very clearly his intention that she should only receive the interest thereof during her natural life. The subsequent clause is in these words; “ my executor, hereinafter named, shall take so much money out of my estate, that I have not disposed of, and loan it on interest; take sufficient security for the same, so that the interest accruing from from said money, and the interest of my wife Elizabeths dower, will make the yearly income of one hundred dollars, which my executor, hereinafter named, shall pay unto my wife Elizabeth in two equal half-yearly payments.” In the first clause, containing the bequest of the seven hundred and fifty-five dollars and fifty-six cents, which, as it seems, was the one-third of the -purchase-money of a plantation sold by the testator to a George Lindenberger, which the testator calls his wife’s dower in the plantation, he expressly wills that Lindenberger shall pay that amount of money to his wife Elizabeth. Now it must be observed, that although the. testator, by the subsequent clause, directs that she shall receive the interest of the seven hundred and fifty-five dollars and fifty-six cents half-yearly from his executor, yet the testator has placed no limitation whatever upon it as to its extent or duration. If the testator had, -in the latter clause, directed the one hundred dollars to be paid to his wife annually, in half-yearly payments, during her life, or any other limited period, then there would have been some ground, perhaps, for saying that he merely intended she should have the interest that should accrue upon the debt owing by Lindenberger, and not the debt itself. But the debt itself was not to be paid by Lindenberger until after the death of the wife of the testator; Lindenberger, however,' was to pay the interest upon it annually until the principal became payable; and this circumstance may have induced the testator to declare it to be his will that the principal should be paid by Lindenberger to his wife, in'order to show the more clearly that he intended she should have the principal as well as the interest; which latter he expressly directs, in the subsequent clause of his will, to be paid to her generally without any limitation as to the continuance of such payment. This subsequent clause, therefore, instead of reducing the amount of the bequest contained in the prior clause, would of itself, under the principle laid down and recognised in the cases of Hellman v. Hellman, (4 Rawle, 450,) Schriver v. Cobeau, (4 Watts, 130,) and Garret v. Rex, (6 Watts, 14,) be sufficient to vest an absolute right in the wife to the debt as well as the interest. The rule laid down in those cases is, that where the interest or produce of a legacy is given to, or in trust for a legatee, without limitation as to its continuance, the principal will be considered as bequeathed also. The case of Adamson v. Armitage, (10 Ves. 416,) is in all its most prominent features, very much like the present. There, the testator, by a codicil to his will, made the following bequest; “ I give to my very trusty and valuable servant, Lydia Adamson, the balance of [78] my account in Mr. Downing’s hands* with the interest thereon, to be vested by my executors in the hands of trustees whom they shall choose and name, the income arising therefrom, to be for her sole use and benefit.” Sir Wm. Grant, Master of the Rolls, held that the legatee was entitled to the absolute interest in the fund; stating that “ in the case of a devise of realty, words of limitation must be added to give more than an estate for life; but in the case of personalty, words of qualification are required to restrain the extent and duration of the interest. Prima facie a gift of the produce of a fund, is a gift of that produce in perpetuity; and is consequently a gift of the fund itself, unless there be something on the face of the will to show that such was not the intention. It is, however, not necessary in this case to call that in aid to entitle the plaintiff to a decree, as here is an express bequest in the first part of the codicil of the entire fund; and the only question is, whether there are after-wards any expressions, reducing to an interest for life, what was once in terms an absolute interest. In the first sentence, there is the substance of the gift; then follows a direction, that the income shall be for her sole use and benefit. Admitting a gift of the produce of a fund merely to create a life interest, it does not follow, that when there is in the first instance a gift of the fund itself, this subsequent direction will reduce it to a life interest merely, as this direction does not extend beyond the income. The testator directs that the fund shall not be immediately handed over; but shall be vested in trustees, ‘ the income arising therefrom to be for her sole use and benefit.’ But there is in that nothing inconsistent with her enjoyment of the absolute property. These subsequent words appear to me to be directory, not restrictive, meaning enjoyment in that mode, not that she is not to have the absolute property.” Every thing advanced here by Sir William Grant, is directly applicable to the case under consideration, and goes to show that the wife of the testator became entitled, under the will, to the absolute property in the fund itself, and that the subsequent clause did not divest her of it, but directed merely the manner in which it should be enjoyed by her. This is also corroborated by the circumstance that no other disposition is made of this fund by the will, than that which is in favour of the wife; while in other cases the testator has not only been particular in giving the interest of certain funds, to restrain it expressly to the life of the legatee in each case, but after the death of the same to give the absolute property in the fund over to others. For instance; he gives and bequeaths the interest of four hundred dollars to his daughter Mary, during her natural life, and after her death, the said four hundred dollars to be equally divided among his grandchildren; and in like manner the interest of six hundred dollars to his daughter Ann during her natural life; and after her death, the said six hundred dollars to be equally divided among his grandchildren. There is therefore strong reason to conclude, that [79] if he had intended to give his wife only a life interest, he would have done it in the same form that he has observed in regard to his daughters Mary and Ann. The judgment is affirmed. Judgment affirmed.