Claflin v. Dewey

Loring, J. This is a bill in equity by the surviving trustee of the will of David S. Godfrey, asking for instructions upon the proper construction of the article in his will which is printed in 169 the margin. The trustees invested the' $21,000 paid to them by the executors as one fund, and on the death of Mary Fiske in 1879 paid $5,000 of it to her children, and invested the balance of the $21,000 as one fund in securities which have since increased in value, so that they are now worth about $36,000. Mary C. Staples, who is now entitled to the share of the residue of the testator’s estate given by him to his wife Elizabeth, claims that, on the termination of the several sets of life estates, the remaindermen are respectively entitled to the sum of $10,000 and the two sums of $5,000, and that the balance of the fund left after reserving $1,000 for the Pine Grove Cemetery was undisposed of and passed under the residuary clause in part to the testator’s widow Elizabeth. We are of opinion that that is not the true construction of this article of the will, but that four separate trust funds were created by it: one of $10,000, two of $5,000 each, and one of $1,000. The gift on the death of all the children of Benjamin and Mary is not in terms a gift of $10,000 out of the fund of $21,000, but a gift of the “ said principal sum of ten thousand dollars.” The testator used the same expression in disposing of the two sums of $5,000 each after the life estates there in question had expired : he gives “ said principal sum of five thousand dollars ” to the children of Benjamin in one instance, and in the other instance “ said principal sum of five thousand dollars ” to the children of Mary. The conclusion derived from a consideration of the wording of these gifts of the remainders is strengthened by the fact that in the powers given by the testator to the trustees, to whom he bequeathed the $21,000, is a power to “ invest said sums of money,” not said sum of money, thus contemplating several funds and not one fund. It follows that the trustees should have originally established four separate funds; since they did not do so, but kept the four funds invested as one, the two sets of remaindermen who have become entitled are entitled to their proportion of the fund as it stood when the time for the distribution of the fund to which they are entitled arrived. If the fund was more than $21,000 when Mary Fiske died in 1879, those who were entitled to the fund of which she had the income during her life are now entitled to the difference between five twenty-firsts of the whole 170 fund as it then stood and the $5,000 then paid them. The children of Benjamin and their legal heirs are now entitled to five sixteenths of the remainder, and that should be paid to them; ten elevenths of the balance should be set aside and held by the plaintiff as one trust fund, and the residue should be set aside and held by him as another trust fund. Under the terms of the reservation the case must be sent to a master to pass upon these matters. So ordered.