Parker v. Iasigi

C. Allen, J. The true construction of this will is certainly very obscure, and we cannot be certain that we arrive at the actual intention of the testator, in respect to the questions which [422] have been submitted to us. But the conclusion to which we have come is, that the trust estate under the will did not include the houses and real estate owned by the testator, and that these actions cannot be maintained. In the first place, it is conceded that the third article of the will contains language which, taken alone, sustains the claim of the tenants. In that article, the testator gave, devised, and bequeathed to his wife the use of said houses and real estate, during her life; “ and, at her decease, I give and devise said real estate to my children who shall then be living, and to the issue, if any, of any deceased child or children, per stirpes and not per capita, equally, share and share alike.” Authority was given to his executors and trustees to sell the same, if his wife should desire it; and the proceeds of such sales were to be paid to the trustees, to be by them safely invested and managed, and the income and principal thereof were to be applied and disposed of in accordance with the provisions regulating the management and distribution of the trust fund established by the next succeeding article of the will; that is to say, the net income was to be paid to his wife during her life, and at her decease the trust fund was to be paid over and distributed to and among his children who should then be living, and the issue, if any, of any deceased child or children, “ holding, nevertheless, in trust, such distributive shares of my estate as are herein directed to be so held.” Then comes the fifth article, which furnishes the main ground of the demandants’ contention in the action against the testator’s daughter. This article does not of itself contain any bequest of property, but it is designed to regulate the management and distribution of the bequests therein referred to. All the gifts which are made to the testator’s daughters are contained in the third article, already referred to, the fourth article, under which they are entitled to share in the trust fund of #200,000 after the death of their mother, and the ninth article, under which they are entitled to share in the residue; and it appears by the latter portion of the ninth article that the testator contemplated that the final distribution of this residue should be made in money, and ample authority was given in the eleventh article to convert it into money. The gifts in [423] the fourth and ninth articles would naturally be referred to as moneys. The gift in the third article, looking only at the language contained in that single article, might be real estate, or moneys, according as a sale might or might not have been made in pursuance of the authority therein conferred. No case has been found by the research of counsel in which the word “ moneys ” has been held sufficient to include real estate; but it is contended that the provision in the fifth article, that “ the net income of each daughter’s share of my estate under this will shall be paid to her during her life, .... and upon her decease my said trustees shall pay over the principal sum of her said several share .... to her issue,” &c., shows an intention to include their interest in the two houses under the trust, even though the same should not be sold during the mother’s life, and that it has the effect to cut down or limit the title which they otherwise take under the third article in the will. The main consideration in support of the opposite view of the fifth article is, that it was not intended to define the gift, but only to regulate the management and distribution thereof; and that the word “estate” means, by reference, the same thing as “ moneys,” before mentioned at the beginning of that article; and, looking at it in this aspect, that the words mean that the net income of each daughter’s share of his estate, so far as the same should be held in trust under this will, shall be paid to her, without in any manner defining what that share shall be taken to include. The latter view derives some confirmation from the fact that all the other significant words of the article are specially appropriate for personal estate; for example, “pay over,” “distribute,” “principal sum,” and “interest.” Moreover, since the third article contains, when taken by itself alone, a clear gift of real estate, the addition of equivocal expressions of, or contrary tendency in, a later portion of the will, ought not to prevent the gift from taking effect absolutely, unless, on the whole, an intention so to limit it can be fairly inferred. The fact that in the sixth and seventh articles, directing moneys given to certain of the testator’s sons to be held in trust, the words are wanting which are specially relied on in the fifth article to show that real estate was intended to be included in the trust, has some tendency to show that no such [424] effect was designed to be given to them; unless indeed it should be thought that the testator meant to make a distinction in this respect between his daughters and these sons. In all of these cases, it seems probable that, if the testator had intended to put the real estate in trust, he would have said so in some plainer terms than are to be found in the will. Full effect can be given to the provision of the eleventh article, authorizing the trustees to sell “ any or all of my said trust property and estate, both real and personal,” by referring it to the ninth article, in which the testator gives in trust all the rest and residue of his property and estate, of every description, real, personal, and mixed, of which he shall die seised or possessed; clearly contemplating that, under the ninth article, the trust property may include real estate of which he may thereafter become the owner. Certainly the eleventh article was not intended to authorize the trustees to sell the two houses in the lifetime of the testator’s widow, without her consent; and no very distinct meaning can be given to the clause, “ preserving to my wife all the rights given to her by the third article of this will,” as no construction by which the trustees could interfere with those rights would be open to even a plausible argument in its favor. No clear inference can be derived from this clause, that the interests of the daughters in the two houses were regarded as trust estate during the lifetime of the testator’s widow, and that such interests might be sold by the trustees, subject to the widow’s right for life. The circumstance that, if the houses should be sold, the proceeds were to "be held in trust, and that, upon the tenants’ construction, if not sold, the daughters will hold their shares absolutely, though entitled to consideration, is by no means decisive. On the whole, recognizing that the true construction of the will is open to much doubt and* uncertainty, we think it better to adhere to the plain language of the third article, and to hold that the gift therein contained is not cut down or controlled by the equivocal expressions in other parts of the will. Judgments for the tenants.