Valentine v. Borden

Hoar, J. The able and exhaustive arguments which have been addressed to us in this case have fully satisfied the court with a conclusion which we might perhaps have found no great difficulty in reaching. 1. It is clear that the provisions in the eighth article of the will of William Valentine have reference only to the bequests to the descendants of his sister Abigail Webster; and, as the contingency on which the bequest of the residue to those descendants depended did not happen, the questions presented in this suit are not affected by that article. 2. By the third clause of the fourth article of the will, on the death of the testator’s grandson one half of the whole fund in the hands of the trustees vested in the children of the said grandson, of whom the plaintiff is one. It follows, that on the death of Charles E. Valentine, one of the children of said grandson, his share would go to his administrator, to be distributed equally among his mother and surviving brothers and sisters under the statute of distributions, the deceased having taken under the will of his great-grandfather, and not by inheritance from his father. Sedgwick v. Minot, 6 Allen, 171. Howland v. Howland, 11 Gray, 469. The plaintiff has therefore no direct claim against the trustees for any part of the estate of said Charles E. Valentine, which can be asserted or enforced in this suit. 3. It seems to us necessarily to follow from the vesting of one half of the estate, upon the death of the grandson, in his issue, taken in connection with the direction in the seventh article that “ separate accounts be kept with each of my said grandchildren and their descendants,” that, on the death of the plaintiff’s father, the fund should be divided into two parts ; one part to be kept and managed by the trustees for the benefit of Mrs. Fox, so far as the will allows, that is, to an annual amount not exceeding one eighth of the income of that half, and the rest of such income to be invested with the principal for the ultimate benefit of her issue, if they should become entitled to it; and [279] that the other half should be divided into five parts, one for each of the children of said grandson, vesting in them in severalty, but to be retained and managed by the trustees till they should become of age or die, and subject under the will to different disbursements of income, according to the discretion of the trustees, for their support during their minority. 4. We are of opinion that the time construction of the last two clauses of the fifth article of the will is that for which the plaintiff contends. The language is somewhat obscure, and might well bear either construction; but the one which we think should prevail is equally with the other consistent with a literal interpretation, and is supported by the general purpose of the testator to be gathered from the whole will. In the first place, it is to be noticed that there has been a complete and absolute bequest to the issue of the grandson, to vest in them absolutely and completely at his death, in the same manner as if they had inherited from him an intestate estate. The purpose that they should have and enjoy the property from that time is thus clearly indicated. The clauses in question come in as a proviso, and, as it would seem, an afterthought, following the disposition made of the property in the event of both the grandchildren dying without issue. As they restrict the gift previously made, the restriction should not be extended beyond the clear and necessary import of the terms employed ; because, if these. are doubtful, they ought not to derogate from that which was in itself distinct, full and complete. The proviso is as follows: “ Provided, however, and my will and direction is, that if either of my said grandchildren shall die leaving heirs of his or her body, any of whom shall be under the age of twenty-one years, this trust shall continue in force, and the share or proportion of this trust falling to such heirs shall be managed by said trustees as aforesaid until such heirs shall be twenty-one years old, or the last survivor of them shall die, whichever shall first happen, and no longer. And said trustees shall in the meantime from year to year pay to such heirs or their guardians respectively so much of the net income oí their said share or shares of the said trust fund as they shall [280] think proper and necessary to his, her or their good education and comfortable support.” The phrase “ such heirs,” where it first occurs, may without violence to the language be applied to those who are under the age of twenty-one, — “ shall die leaving heirs” “any of whom shall be under the age of twenty-one years,” — the share falling to “ such heirs,” that is, to those last described, who were under the age of twenty-one. And this seems the more sensible when the phrase “such heirs” is next repeated, — “until such heirs shall be twenty-one years old,” — an event not yet to happen in the case of those who were twenty-one years old already, but only to those who were not yet twenty-one, and thus showing that the latter only were intended by “ such heirs.” The trust might continue in force as well after a part of the estate had been distributed as before. But, looking at the reason of the thing, and endeavoring to find the intent of the testator in a sensible and intelligent purpose to which the provisions of his will are adapted, we are brought irresistibly to the same conclusion. We have already seen that from the death of the grandson the shares of his issue would vest in them in severalty. If there were more than one to take under the will, the share of one from that time would not affect the share of another. The testator had made no attempt to provide for any limitation to his descendants beyond those who should be living at the decease of his grandchildren respectively. He was providing for those who were yet unborn. If his grandchildren should have issue to take under the will, the number, whether one or more, the age, the sex, were all uncertain. While there is some reason apparent for his wish that the full enjoyment of his bequest should be suspended, in the case of those who were minors, till they should attain their majority, and that, until they were capable of managing property for themselves, it should remain in the charge of trustees of his own appointment, we can think of no just ground for a provision that the enjoyment by an adult of his own separate vested share of the estate should be made to depend upon the contingency of his having or not a brother or sister, or nephew [281] or niece, who was a minor. Yet, upon any other view than the one we have* taken, while, if the grandson left but one son, he would take the whole share at twenty-one, he would be left dependent upon the judgment of the trustees for a mere support, although he might be forty years old and have a family of his own, if there were a brother or nephew who had not attained his majority; and this, although his share and the other had no connection in law or fact except that they were in the hands of the same trustees. The direction to the trustees to pay to “ such heirs ” or their guardians respectively so much of the income of their share or shares of the trust fund as they should think proper for their education and support, can have its full application and effect by construing “ such heirs ” to mean those who were minors. A decree will therefore be entered that the trustees convey to the plaintiff one fifth of one half of the estate in their hands, and for the allowance to all parties to the suit of their costs from the fond.