Frost v. McCaulley

Wolcott, Chancellor. This case was heard on bill and answer. The latter admits all the allegations of fact contained in the former, but practically denies the legal effect thereof. William McCaulley, late of the City of Wilmington, in his lifetime, made his last will and testament, bearing date the 12th day of March, A. D. 1880, in which he gave and devised his property to the persons therein named in the shares and proportions, as shown in the following items of said will: “ First. It is my will that my just debts and plain and moderate funeral expenses, and the necessary expenses of settling my estate, be' first paid as soon as conveniently may be, after my decease, and to that end I authorize and empower my executors and trustees, hereinafter named, to sell and convey to the purchasers in fee-simple, or otherwise, all or any part of my estate for cash or upon credit, or part cash and part credit, at public or private sale, in small or large lots in all things at their discretion, as they may deem best for the advantage of my estate, and out of the net proceeds of such sale, and from collections to pay off all my debts, and to rent and manage my estate SO' as to have the same settled in a fair and reasonable time after my decease; and to manage the said estate for the best advan — 172 — toge in every respect, as I might or could do if living. And I hereby authorize my executors and trustees, at their discretion, to pay to any of my children who may need it, such sums from time to time before the estate is settled, as they may deem needful and proper; the same to be accounted for as part of the income of their shares in my estate, respectively. “ Second. I give, devise and bequeath unto my two nephews, Samuel W. McCaulley and John Augustus McCaulley, and the survivor of them, all my real, personal and mixed estate of whatever kind or nature, or wheresoever situate or being in tire State of Delaware, or elsewhere; to them, their heirs, executors, administrator and assigns; in trust, nevertheless, for the uses, intents and purposes above and within mentioned; and especially with power and authority to create liens cn any part of my estate, by note, judgment and mortgage, or otherwise, until my estate can safely be sold at their discretion. And to apportion my estate into eleven equal shares or parts to be distributed as follows, to-wit: “ The income of one of which shares or parts, I give to my beloved wife, Sibilla McCaulley, to be paid to her half-yearly, for and during her natural life, to be deemed and taken in lieu and bar of dower in my estate. I make this provision for the love and affection I bear her, she having her own estate, which is ample, and there being a marriage contract between us, authorizing each party to have and manage his or her estate, without the claim or interference of the other, and in bar of dower, said marriage contract being in the hands of one Waddell, of Trenton, Mew Jersey, and after the decease of my said wife, I order the same principal and — 173 — income paid to' my granddaughter, Florence Hill Frost, absolutely, her heirs and assigns. “ The income of one other of said shares or parts, I give to my son Samuel Sinclair McCaulley, to be used and expended for his use and benefit by my executors and trustees, and the survivor of them, for and during his natural life, at such times and in such manner as they may deem for his advantage, and after his decease, and after paying for his necessary expenses in last sickness and funeral expenses I give said share or part unto his sisters and nephews and nieces, share and share alike, absolutely. “ The income of four other of said shares or parts, I give unto my daughter Mary Sinclair Jefferis and her two sons and my grandsons, William McCaulley Jefferis and Joseph Herbert Jefferis, half-yearly, she to receive two shares and they one share each, until the decease of their mother, when each son shall have two shares absolutely. “ The income of four other of said shares or parts, I unto my daughter, Elizabeth W. Coombe, and her two daughters and my granddaughters Kate Halloway and Elizabeth Coombe, Jr., payable half-yearly, the mother to receive two shares and each of her daughters one share, until the decease of the mother, when each daughter shall have two shares absolutely. “ The income of one other, and the last of said shares or parts, I give to my granddaughter Florence Hill Frost, daughter of my son William S. McCaulley, deceased, payable half-yearly, for ten years, after which time I give the same to her absolutely.” — 174 — The testator departed this life on or about the 22d day of September, A. D. 1883, leaving said will unrevoked, which was duly admitted to probate by the Register of Wills in and for New Castle County, and on the 27th day of September of the same year letters testamentary were, in due form of law, granted to Samuel W. McCaulley and John Augustus McCaulley, the executors named in said last will and testament. The executors, in the course of the administration of the testator’s estate, on the 4th day of April, A. D. 1889, passed a third and last account, wherein they showed a balance due the estate of $58,382.95. Of this sum it is admitted that Samuel W. McCaulley and John Augustus McCaulley, who had assumed the character of trustees, under the direction contained in the said will, held $5,287.36 in trust for the complainant, Florence Hill Frost. The complainant’s share of the estate of the testator is the oner eleventh part. The provision of the will under which she takes reads as follows: “ The income of one other and the last of said shares or parts, I give to my granddaughter Florence Hill Frost, daughter of my son William S. McCaulley, deceased, payable half-yearly, for ten years, after which time I give the same to her absolutely.” The question raised hy this provision of the will is whether the principal of the fund, which represents the complainant’s interest in the estate of the testator, became payable at the expiration of ten years from the day of the death of the testator; that is to say, on the 23d day of September, A. D. 1893. — 175 — It is admitted that the complainant at that time was over twenty-one years of age, and, therefore, competent to receive her legacy and execute an acquittance for the same, unless there was annexed to the substance or the payment thereof a condition which forbids the complainant’s right of immediate possession thereto: Was there such a condition? The first step in the determination of this question is to ascertain the time when the division of the estate, as directed by the will, was to take place. As no definite time was fixed by the testator, it becomes the duty of the court to fix such time as will best aid in carrying into effect the uses, intents and purposes for which the trust created in the second item of said will was established. By conferring on his executors and trustees the power to pay to any of his children such sum or sums of money, from time to time, before the estate was settled, as any of Sthem might need, and such payments to be treated as part of the income of their respective shares, the testator clearly indicated that the division of the estate should be made or be considered as made before the final adjustment or settlement of the same. It must be observed that the payments to the children of the testator were to be made out of the income produced by their respective shares. How could the executors and trustees make such payments while the estate remained in bulk or undivided according to the scheme of division as presented in the will? He nowhere in his will provided for the investment of his whole estate and the distribution of the interest annually accruing thereon among those whom he had designated as the objects of his bounty. But he did ex — 176 — pressly provide for the investment of each share and the disposition of the income arising therefrom, thus making the income to be derived from the shares of some of the legatees the only source whence they could derive any benefit from the testator’s generosity. Though the estate has now been actually apportioned or separated into shares as directed by the will, yet, for the purposes of the will, it must be treated as so separated from the death of the testator. To concede that the time for the division of the estate wo'uldi be immediate after the final settlement thereof would make the enjoyment of each gift contingent upon the sloth or diligence of the executors, and might result in partial or total defeat of the intention of the testator, as to one or all of his beneficiaries, especially those whose interests are coexistent and coterminous with their lives. There is, therefore, not a shadow of reason for imputing such an intention to the testator. Though the estate has never been actually apportioned or separated into shares, as directed by the will, yet for the purposes of the will it must ex necessitate rel be treated as so separated from the death of the testator. What in equity ought to be done is considered as done. Having ascertained the time when the division of the' estate took place, we must next inquire whether the share of the complainant is a vested or a contingent legacy. The provision of the will, by which the testator gave to the complainant one-eleventh part of the estate in the first place, gives to her the income, payable semi-annually, for ten years, and after that time gives to her “ the same; ” that is, the principal, absolutely. The gift to her of the principal, without the gift of the — 177 — income, during the interval between'the death of the testator and the expiration of ten years thereafter, would have made her share a contingent legacy, but the appropriation of the accruing interest during that interval-for her benefit makes the gift, in substance, an absolute vested legacy, divided into two distinct portions •or interests, for the purpose of postponing not the vesting but the possession only. 1 Jarman on Wills, 843 (5th ed. Bigelow). It is, therefore, a vested legacy, payable immediately after the expiration of ten years from the testator’s -death with all the unpaid interest thereon.