Stevens v. Fisher

Devens, J. It is the contention of the brothers Emery B. Fisher and Gardner P. Fisher, that although, by the will of the testatrix, a fund of $20,000 was to be created, the income of which was to be devoted to the mother of the testatrix, who was also their own mother, during her life, and the sums of $10,000 bequeathed to each respectively are coincident in amount with the fund as originally created, and although they were not payable until the death of their mother, yet they are absolute and [126] unconditional legacies, to be paid out of any funds of the estate. The question arises by reason that the 120,000 fund has been depleted, and two legacies of $10,000 each cannot now be paid in full therefrom. They further contend, that although, by the ninth clause of the will, the residue of the estate was bequeathed to be held in trust for the benefit of the daughters of the testatrix, and such trust estate has been actually formed and dealt with as such during the lifetime of the mother, yet properly there can be no residue, or accurate determination of the amount thereof, until these legacies have been paid. The fund for the benefit of the mother during life was formed, as the will provided, from the proceeds of certain insurance policies held by the testatrix on the life of her deceased husband, with the addition of a sufficient amount from the general funds of the estate to make $20,000. The executors were duly appointed, and they qualified by giving bond as trustees of this estate, as held for the use and benefit of the mother during life, and thereafter for other purposes. The executors never petitioned to be, and never were, appointed trustees of the rest and residue of the estate, but they did transfer and set apart to themselves, as trustees under the ninth clause, the remaining portion of the estate of the testatrix, and have kept the same distinct. They made return, in their second account as executors, of these funds as paid to themselves as trustees, and have subsequently rendered'accounts thereof to the Probate Court, in which the disposition of the funds of this residuary estate and of the income thereof has been separately accounted for by them as such. In regard to this latter fund, the trustees have never given bond as such; but whatever might be the effect of this, if we were considering whether they were still liable upon their bond as executors, this fact does not appear to have the importance which the defendants Fisher attach to it. Nor indeed could the action or failure of action of the executors or trustees control the construction of the will. The question in the case at bar is rather what, by the will, the executors or trustees should have done in regard to the residue after the debts had been paid and after the $20,000 fund was formed, as that may bear upon the construction of the clause by which the two legacies of $10,000 were bequeathed upon the decease of the mother. [127] The portion of the seventh clause by which the gift is made to the two brothers, omitting the contingency of the death of one before the mother, which did not occur, would read as follows : “ I give, devise, and bequeath out of my estate, after my said mother’s decease, to the use of my two brothers, said Emery B. Fisher and Gardner P. Fisher, out of my estate, the sum of ten thousand dollars each.” The sixth clause of the will had directed that the fund of $20,000 should be formed, and from what sources it should be formed. As it was provided that the mother should receive the income during life, and as the legacies were not payable until the decease of the mother, there is no difficulty in holding that they were payable primarily from this fund, and that the seventh clause to this extent refers to the fund directed to be formed by the sixth. Even if this is so, it is urged that, while this fund is indicated as that from which they are to be paid, if for any reason there is a failure thereof, the words “'out of my estate ” show that they are to be paid from any other property of the testatrix’s estate. Where, even if a legacy is charged upon a particular fund, it appears by the will that it is not to fail by reason of any failure of the fund, or its inadequacy for the purpose, the legacy is held to be demonstrative. That a legacy which is thus charged should be demonstrative, there should appear a fixed separate intent to give the money or legacy independently of the fund. The cases in which the distinction between specific and demonstrative legacies has been pointed out, and in which it has been discussed whether that in dispute was of the one or of the other character, are very numerous, both in England and in this country. Many of them have been well and carefully considered in the argument on behalf of the brothers. We do not think it would be profitable or desirable here to examine or analyze them individually. The circumstances under which all these cases arise, the language and expressions used in the wills to be construed, so differ that we could not expect to find exact similarity with the case at bar, or with any other which might be under discussion. Each must, therefore, be decided with reference to its own circumstances and the peculiar phraseology used. Whether all the cases can be reconciled" or not, they all proceed upon the principle that whether a legacy is demonstrative or specific must [128] be decided by the intent of the testator as it appears from the will; and that, where a legacy is held to be demonstrative, a general intent is shown to have it paid without reference to the fund on which it is primarily charged. Creed v. Creed, 11 Cl. & Fin. 491. White v. Winchester, 6 Pick. 48. Bliss v. American Bible Society, 2 .Allen, 334. While the words “ out of my estate,” upon which much reliance is placed, would indicate, if they stood alone, that the legacies were to be paid from the general funds of the estate, they are controlled by the other parts of the will, and by its whole general scheme. The sums bequeathed correspond exactly with that intended to provide the mother’s income, and were only to be paid at her decease. The testatrix had made it certain that this full sum would be put in trust, as her whole property was liable to make it up. The contingency that the sum might increase during her mother’s life had occurred to her, and the terms in which she provides for any excess over $20,000 show that she considers that she has bequeathed the original principal to her brothers. By the latter portion of the seventh clause, she disposes of the “ said principal sum or insurance, and its increase thereon over the sum of twenty thousand dollars,” to the uses contemplated by other parts of the will. It does not seem probable, that, when the whole estate was subjected to the charge of constituting the $20,000 fund from which the brothers were to be paid, the residue, which was to be the basis of a trust for the benefit of the daughters of the testatrix, was again to be subjected to a liability to make it good, should it be afterwards diminished. This is made quite clear by examining the provisions as to the trust contemplated by the ninth clause. From the income of the residue the daughters are to receive their education and maintenance during their minority, to such extent as the trustees deem reasonable, are to receive the income of their respective shares on reaching their majority, and, on attaining twenty-one years or in case of marriage, if they desire, to have marriage portions to the amount of $5000 from the principal. A fund is indicated which must have been intended to come into existence at once, or as soon as in the course of administration it could be formed, [129] and of which during the life of their grandmother the children were to have the benefit. If this fund is subjected to losses which may occur by reason of its liability to' make good the deficiency in another fund, the whole scheme of its administration is impracticable. Mo trustee could determine what expenditure he could make, for the education of the daughters which would be needed during the life of their grandmother, nor pay them the sums bequeathed on their majority or marriage, nor the income at their majority, all which events might occur during the life of their grandmother. We are of opinion, therefore, that the brothers must depend upon the $20,000 fund for the payment of their legacies. A loss to this fund of $13,581.33 was caused by theft, but the fund itself had been increased during the life of the mother, by a rise in the value of the securities in which it had been invested, to $23,737.50. It is contended on behalf of the daughters, that all to which the brothers are now entitled is the difference between $13,581.33 and $20,000, and that the increase over $20,000 is to be transferred, by operation of the last portion of the seventh clause, to the other uses of the will. We cannot concur in this view. “ The remainder of said principal sum or insurance, and its increase thereon,” which would pass by this, is only that which is “over the sum of twenty thousand” dollars. When the $20,000 fund was released by the death of the mother from her' charge for income, the first use to which it was devoted was the payment of these legacies. While the brothers must suffer by its diminution by theft, they are entitled to any increase that may have been made, this increase not causing their legacies to exceed $20,000. Instructions accordingly.