Johnson v. Stanton

Hinjian, C. J. The question in this cause respects the title to a fund of $17,000 which the late Judge Huntington by his will directed to be invested and held, and the income thereof paid to his widow for her use and disposal; and at her decease the principal, and all the income which had not then become due, to be paid over to his father, Zachariah Huntington, if then alive, but if dead, then to such person or persons as his father should by his last will and testament designate and appoint. Zachariah Huntington died previ [302] ously to the widow of his son Jabez W., making no appointment by his will of any person to take this particular fund. It did not therefore vest in him under this clause of his son’s will, because his son’s widow survived him, and it did not vest in any appointee of his, because he made no appointment. Zachariah Huntington was also the residuary legatee under his son’s will, and the general words of this clause are undoubtedly comprehensive enough to include any interest in the fund not previously disposed of in the will. Was this clause intended to pass any contingent interest in this fund to his father ? We think he did not in that clause contemplate this fund. The general words are used for the purpose of passing the property which he had not specifically devised. It is, of course, a question of intention to be gathered from the whole will, and such general words can not be allowed materially to alter other express provisions of the .will, introduced in respect to this fund when he had it under consideration. His will is very explicit and precise in respect to the disposition of this fund. He directs it to be held upon certain trusts and uses, and he expressly excludes any other. He then gives it to his father only in case of his surviving his widow, but gives him a power of appointment in the event of his not surviving her. But if the residuary clause should be held to be operative, these provisions would be wholly nugatory. The contingent interest, carefully specified, would, immediately on the taking, effect of the will, become a vested interest in_Zachariah ; and the power of appointment by will would be useless or nugatory, as he would have the higher power of disposing of it in any manner that he pleased ; and it might be taken for his debts. In other words, if he could be permitted to take the fund under the residuary clause, he would take it absolutely, only subject to the life estate of his son’s widow in the income, whereas the precise terms in which only a contingent interest is given to him in it, with a power of appointment by will, in the event of his not surviving the widow, shows a clear intention in the testator that he should not take it absolutely. The general words of the residuary clause are therefore plainly repugnant to the special provisions in respect [303] to this fund. They appear to us therefore as only intended to operate on other property. The case of Allum v. Fryer, 3 Ad. & El. N. S., 442, is very similar to this in the faets upon this point, and in that case the general words of a residuary clause of a will were held to be controlled by very similar specific provisions in respect to specific property. We have said nothing in respect to the construction of the wills of Zachariah Huntington and Thomas M. Huntington, because from what has been said it appears that they do not in any way affect this fund. It is proper to remark however that the will of Zachariah does not profess to be an execution of the power granted him in the will of his son Jabez W. He does not in any part of his will refer to this power of appointment or to the subject-matter of it; and his will only professes to dispose of his own private property. Indeed we do not understand that it is claimed that it can have any effect upon the fund, unless the court should be of opinion that he took something more than a mere power over the fund in the event of his not surviving the widow. We therefore advise the superior court that the administrator of the intestate estate of Jabez W. Huntington is entitled to this fund, for the purpose of distribution to his legal heirs, after deducting the expenses incident to the settlement of his estate. In this opinion the other judges concurred.