Einbecker v. Einbecker

Mr. Justice Waterman delivered the opinion of the Court. It is clear that the intention of the testator was to provide for his widow an income of §125 per month, so long as his daughter Cecelia remained with her mother. It is also apparent that the testator did not intend to limit' the source of such income to his personal estate. The trustees are given power to sell and convey all of the real estate, and full power to collect, manage, invest and re-invest all moneys coming to their hands as trustees; this includes moneys derived from sale, as well as from' income. The object of the conveyance to the trustees and the powers intrusted to them, is to pay the income provided for the widow of the testator, and to have the estate properly managed until the periods of distribution arrive. When a distribution is made, upon the coming of age of the youngest child, the trustees are to retain sufficient capital, consisting of either real estate or securities, to insure from the income arising therefrom the prompt payment of the monthly allowance to the widow. The annuity should have been paid each month. Houghton v. Franklin, 1 Sim. & Stu. 390. The annuity became, by the acceptance by the widow of the provisions of the will, in effect, a purchase of her dower right. Stamper v. Pickering, 9 Sim. 176; Corrigan v. Reid, 40 Ill. App. 404-413; Blatchford v. Newberry, 90 Ill. 11; Borden v. Jenks, 140 Mass. 562. The intent of the testator is to be determined in view of his presumed knowledge of what the effect of her acceptance would be. If the income from the estate is insufficient to pay the annuity, the annuitant is entitled to resort to the corpus of the property in the hands of the trustees. Wright v. Callender, 2 De Gex, M. & G. 652; Stamper v. Pickering, 9 Sim. Ch. Rep. 176; Mills v. Drewitt, 20 Beav. 632; Baker v. Baker, 20 Beav. 548; Arundell v. Arundell, 1 Myl. & K. 316; Hodge v. Lewin, 1 Beav. 431; and see Leslie v. Moser, 62 Ill. App. 555. The decree of the Circuit Court is affirmed. Mr. Justice Shepard : The question in all like cases is, what was the intention of the testator, as expressed by his will. Without attempting to elaborate the argument, it seems to me that uhe paramount intention, of the testator, as gathered from the entire will, was to preserve the corpus of the estate for division at the future time indicated by it, and to charge the income, only, with the annuity in question. In other words that it was not the intention to defeat the gift over, by way of remainder, by the charge of the annuity.