Fiske v. Eddy

Devens, J. The will of Caleb Eddy gives “ the net income of estates numbered twenty-four and twenty-six on Harrison Avenue, semiannually or oftener, to my sons Benjamin and Albert M., during their joint lives, one half to each and to the survivor during his life.” The testator then gives the income of the estates numbered seventeen and eighteen Green Street to his wife, who is now deceased, “ and in further trust upon and after the decease of my said wife, whether she shall survive me or not, semiannually or oftener, to pay the net [156] income as aforesaid of said estates, both on Green Street and on Harrison Avenue, to my sons Benjamin and Albert M., . . . said net income ... to be paid one half to each during their joint lives, and upon the decease of either the said Benjamin or the said Albert M., leaving no lawful issue, during the life of the said Robert H.” (who was another son of the testator), “ then to pay one fourth part of said net income of said four estates on Green Street and Harrison Avenue during the life of the survivor to my said son Robert H., and the other three fourths to the said survivor so long as both he and said Robert H. shall live.” Robert H. is, under the will, the residuary devisee and legatee of all the testator’s property which is not specifically disposed of. Benjamin is still living, and the instruction requested relates to the disposition during his life of the income from these estates, Robert H. having now deceased. That at the decease of Benjamin his children will have the fee in them is not controverted. A subsequent clause of the will gives this to the issue of the survivor of Benjamin and Albert M., if one should die without issue, and if neither should leave issue, then to go to the testator’s “ then heirs at law.” Albert M. died without issue, but Benjamin has three children living, who are now all of full age. On behalf of Annie G. Eddy, the widow of Robert H., representing the estate of her late husband, it is contended that she is now entitled to the whole income from these four estates, or in any event to one fourth thereof, until the death of Benjamin, by virtue of the residuary clause in the testator’s will. After the death of Albert M., and during the life of Robert H., this income had been divided between Robert H. and Benjamin in the proportion of one fourth and three fourths. The inquiry is now, What is to be done with the income of the trust estates after Robert’s death, and during Benjamin’s life ? The income of the Harrison Avenue estates was, in express terms, given to the survivor of Albert M. and Benjamin for life. To maintain the larger contention of Mrs. Eddy, it would be necessary to hold that this was taken away by the subsequent clause. This would be to extend the meaning of the latter more than can fairly be done. [157] Disregarding, for the moment, the provision as to the receipt of one fourth of the income by Robert H. in the event of the decease of one of his brothers before the other without issue, if the provision as to the Harrison Avenue estates had terminated with the words which provide for the payment of the income of both the Green Street and Harrison Avenue estates to Albert M. and Benjamin, during their joint lives, it would be reasonably clear that the survivor was to take the income of all these estates. In dealing with the Green Street estates, it was necessai'y to mention them separately, because the testator desired to appropriate the income from them to his widow during her life. Having done this, he proceeds to give the income subsequent to her decease to these two sons during their joint lives. He does not here add “ and to the survivor during his life,” but the connection into which he has brought those estates with the Harrison Avenue estates, and the subsequent disposition of the four estates in fee to the issue of these two sons, or of that one who shall have issue, and the provision which is found in the will subsequently, that any income not expended at the decease of either shall be disposed of as he shall appoint, and “ in default of such appointment it shall be applied for the benefit of the survivor, his family of children,” show that these four estates were set apart from the rest of his property for the benefit of these sons, and that neither these estates nor any income from them were to pass into the residuum of the estate. The clause which follows this bequest of the income to these two sons modifies it to this extent, that, under certain circumstances, it gives a portion of the income to Robert H.; but it does no more than this, nor does it leave any portion of the income undisposed of. So long as both Robert H. and the survivor of the other two brothers live, the survivor is to receive the income of the trust estates, diminished by one fourth, which is to be paid to Robert H. When Robert H. dies, it remains for his life to the surviving brother. This interpretation seems in strict conformity to the whole intention of the testator, as gathered from all parts of his will. If he had intended to give to Robert H. anything more from the estates thus set apart to the other two sons, there would have been found some expression of this. The defendants urge that the language used in the gift of a [158] portion of the income to Robert H. indicates that at his decease the whole is to pass into the residuum of the estate. By this construction, the surviving brother of the two for whom the testator has made most careful provision.— other parts of the will to which we have not especially adverted showing that he had little confidence in their ability to manage property — would be left for the remainder of his life without any means of support derived from the income of the estates apparently set apart for them. The language by which this income is dealt with, in the event of one of the brothers surviving, while Robert H. survives, is not fortunately chosen ; but we find no intent there exhibited that at the decease of Robert H. it is to be treated, either in whole or in part, as property undisposed of, except by the residuary clause of the will. When the testator says, that on the death of either Benjamin or Albert M., leaving no lawful issue, during the life of said Robert H., one fourth of said net income of said four estates was to be paid during the life of the survivor “ to my said son Robert H., and the other three fourths to the said survivor, so long as both he and said Robert H. shall live,” his intention is to provide that the survivor, instead of having the whole income which he has bequeathed to his sons for their joint lives, shall, while Robert H. lives, have but three fourths thereof, while Robert H. has the remaining fourth. If the word “ only ” were inserted before the words “ the other three fourths,” the idea which the testator had in his mind, to reduce the income of the survivor while Robert H. lived, would be expressed more clearly, as it would then read that the survivor was to have only the three fourths “ so long as both he and said Robert H. shall live,” thus leaving the income undiminished when Robert H. should decease. It has not been found necessary, in this view of the case, to consider what the rights of Benjamin might be as heir at law, if the income of this fund were not disposed of by the will. The trustee should be instructed that the net income derived from the trust fund created by the will of Caleb Eddy should be paid to Benjamin Eddy during his life, together with that which has accrued since the death of Robert H. Instructions accordingly.