Russell v. Loring

Dewey, J. The question at issue between these parties is, whether Joseph Russell, the husband of the testatrix, has under her will an annuity of $2000 fixed and certain in its amount, or under the provisions of the will directing a portion of her stocks or other property to be placed in trust for him and certain payments to be made to him, he was to receive the entire income of the fund thus set apart for his benefit. It would have been easy to declare a bequest of the former character, making the same payable by the executor absolutely out of her estate generally, or to place in the hands of her executor or a trustee funds chargeable with the payment of such an annuity. It would have been equally competent for her to set apart such an amount of her estate as in the opinion of her executor might be deemed the proper amount substantially to effect that object, and to authorize her husband to receive the entire income arising therefrom. The question is, which of these modes was selected by the testatrix, as such intent may be gathered from the language of her will. Although the question is not perhaps entirely free from doubt, yet, as it seems to us, the bequest falls more properly within the latter class. It is not the case of an ordinary bequest of a simple annuity directed to be paid by her executors. It is a case where the bequest was not intended to interfere with the full and final disposition of her estate, independently of the property set apart for the benefit of her husband. The residue of the property was at once to pass to other devisees. No provision exists in the will for adding any surplus of the income of the [124] fund to the increase of the fund, nor for supplying any deficiency, if it failed to produce $2000. In the bequest to the other devisees, she describes this investment as property “ given to my husband for life.” She also directs that, “ immediately after his decease, the part so bequeathed to him be divided,” &e. But it is more particularly the language of the bequest to him that leads us to adopt the proposed construction of this will favorable to the plaintiff. After setting apart a fund for his benefit, she directs her trustee to “ pay the dividends, interest or income arising therefrom to my beloved husband, Joseph Russell, during his own life, and for his use and benefit; and from and after the decease of my said husband my will is, and I do hereby direct, that said stock or other property hereinbefore given for his benefit shall sink into and become part of my residuary estate,” &c. Here manifestly the' testatrix assumes that the bequest directing an investment is a gift of property for the use of her husband, and that the specific property thus given will remain until his decease, and then pass to her residuary devisees. But the controlling clause of the will is that directing the trustee “ to pay the dividends, interest or income arising therefrom ” to her husband during his own life, and for his use and benefit. Construing this clause literally, it is a direct gift to the husband of the entire income of the fund thus set apart for his, use. It is this clause which particularly distinguishes this case from that of May v. Bennett, 1 Russ. 370, a case in some respects much like the case at bar. In that case, the testator directed his executors “ to lay out in their own names, and in what government security they pleased, as much money arising from his estate as would produce the annual interest of ¿654 12s. per year for the sole use of my wife, which interest per year my said wife shall receive during her life.” An investment was made in government stocks sufficient at the time to produce an annual interest of the sum named, but subsequently failing so to do, upon an application to the master of the rolls by the wife to require the executor to continue the yearly payment of the sum of ¿654 12s., he held she was entitled to receive that sum annually; and if the investment made by the executor did not produce that sum [125] annually, the legatee was entitled to have it made up; and if there were no other funds of the estate to be thus applied, a sale of a part of the stock purchased for the investment' should be sold and applied to make up any deficiency of interest that might exist. It will be seen there was no other direction there but for the payment of <£54 12s. In the case before us, we find something more; and we find other parts of the will aiding us in the construction we put upon the will. The court are of opinion that, looking at all the parts of this will and giving proper effect to its language, it must be construed as authorizing the executor to set apart so much of the property of the testatrix as would be sufficient to produce the annual sum of $2000; and that when such stocks or other property had, in pursuance of the will, been thus set apart, the husband was entitled to receive to his own use the entire dividends, interest or income arising therefrom, during his own life. As to the amount of the fund that was set apart by the executor, there is no suggestion made that it was not done in good faith, or that it was so extravagantly large as to be objectionable on that account. The testatrix placed confidence in the executor to act upon this subject, and to exercise some discretion in reference thereto ; and there has been no attempt to set the same aside or to modify it, by application to any supervisory tribunal. The respondents, in their arguments submitted to the court, have urged', as an objection to the maintenance of this bill, that the plaintiff has a plain, adequate and complete remedy at law. To this objection several answers may properly be given : 1st. It is a suit “ for enforcing and regulating the execution of a trust,” and is therefore a proper case for bill in equity. Rev. Sts. c. 81, § 8. 2. The parties, by agreeing to submit the case to the determination of the court upon a statement of facts, waive all objections to the forms of proceeding", unless that point is expressly reserved by them. 3d. The objection that the plaintiff has a plain and adequate remedy [126] at law, comes too late when raised for the first time on the final hearing on the merits, where the court have jurisdiction of the subject matter. Clark v. Flint, 22 Pick. 237. Such objection should be made by plea or demurrer, or should be distinctly stated in the answer of the defendant. Wiswall v. Hall, 3 Paige, 313.