Sykes v. Van Bibber

Page, J., delivered the opinion of the Court. George Presbury died in the year 1883, leaving a last will by which he devised and bequeathed all his estate to trustees, for the benefit of his wife, Louisa Presbury, for life, and directed that on her death, the whole estate (except a house on Charles street and certain other property that was specifically bequeathed) be sold, and the proceeds thereof distributed as required by subsequent clauses. In the third item he bequeathed as follows: “ Item 3d. I give and bequeath to Frank X. Jenkins for my dear adopted nephew, James Sykes, Thirty Thousand Dollars, which sum and whatever other sum he, the said James Sykes, may be entitled to under this my will, In Trust to invest the same, and the income, or as much of said income as may be necessary, to apply to the support, education and maintenance of said James Sykes, until the said James Sykes shall attain the age of twenty-five years, when the said trustee shall pay to him said sum with the income that may have accrued — 105 — thereon. In the event of the death of my said nephew James Sykes before he attains the age of twenty-five (25) leaving a widow and a child or children, then the said sum to which he would be entitled is to be so divided that the widow and each child may share alike, and if he die leaving a widow and no child or children, then the whole sum to the widow, and if he die leaving a child or children and no widow, then the whole sum to the child or children, and if he die leaving no widow or no child or children, then the sum to which he would be entitled is to be divided as follows: to his mother, Mrs. Imogene Sykes, the sum of five thousand dollars ($5,000); to his sister, Lina Sykes, five thousand dollars (5,000); to Harry Lee Sykes, five thousand dollars ($5,000); to Chas. H. Sykes, five thousand dollars ($5,000); and the residue to Mrs. Mary Van Bibber, wife of Dr. John Van Bibber.” (Record, p. 9 and 10.) And by the twelfth item, as follows: “ Item 12th. I give and direct that the residue of my estate be equally divided between my niece, Mrs. Mary Van Bibber, and my nephew, James Sykes: that the share of Mrs. Van Bibber shall be for her sole and separate use and that the share of James Sykes shall be held in trust by Frank X. Jenkins under the same terms as are set forth in the 3rd item of this will.” At the time of the testator’s death, the estate was more than sufficient to pay all the pecuniary legacies. TJiese amounted in the aggregate to $95,000. It is now alleged that when all the estate shall be sold, the amount to be realized therefrom, will not be sufficient to pay them all in full. The bill was filed by the trustee substituted for the trustees named in the will, and it is asked that the property be distributed under the supervision and order of the Court. The controversy to be settled in this appeal arises under the third and twelfth items, already fully stated. There was no residue to pass under the twelfth item, and the assets not being sufficient to pay in full the amount bequeathed to James Sykes in the third, he having died unmarried and childless before attaining the — 106 — age of twenty-five years, the Court below was asked to determine how the funds applicable ought to be distributed. It is contended by the appellants, that they are each entitled to be paid the amounts severally awarded them by the testator, at least to the extent of the fund to be distributed, and that Mrs. Van Bibber takes only what may remain, whatever that may be. Mrs. Van Bibber, on the other hand, claims that the legacy in her favor contained in the third item, is specific, and that in consequence if the fund applicable is not adequate to the payment of all, the other persons named should have the amounts abated proportionally. In searching for the intention of the testator we cannot doubt that the testator in the third item disposes of two sums as one sum, viz., a sum composed of the $30,000 and of such other sum James Sykes was entitled to under other portions of his will. The last mentioned sum was that to which he should be entitled under the general residuary clause, that is the twelfth item. In other words, the sum to be paid James Sykes when he had arrived at the age of twenty-five years, was that which was to be ascertained by adding the $30,000 to the sum received from the residue. If this be correct, the case is very different from a division of the single sum of $30,000. Suppose, for instance, the sum of ten thousand dollars were carried to the $30,000, Mrs. Van Bibber would then receive twenty thousand dollars, instead of ten thousand, and her proportion would be one-half of the whole fund. If the residuary fund may be supposed to diminish, Mrs. Van Bibber’s share would grow proportionally smaller, and if it should not exist at all, her proportion would be only a third. We find nothing in the will that casts a do.ubt upon the purpose of the testator to make distribution of the whole amount to which James Sykes was entitled. If words convey any meaning, it is clear that he intended to dispose of the fund coming from the residue, as well as of the specifically named sum. His language is without a possibility of being misunderstood: it is, “ I give and bequeath thirty thousand dollars which sum, and whatever other — 107 — sum he, the said James Sykes, may be entitled to under this my will,” &c., “ shall be applied to the support of James Sykes until he arrives at the age of twenty-five years,” “ when the said Trustee shall pay to him said sum with the income that may have accrued thereon.” What sum did the testator there refer to? Obviously not the $30,000 only, but a sum made up of that sum added to the sum to come from the residuary clause. And again, when in the same item, he comes to provide for the event of Sykes’ death under the age, unmarried and childless, he declares that the “ sum to which he (James Sykes) would be entitled is to be divided,” &c., it cannot be questioned that the sum thus to be divided was one made ftp from the addition of the bequest under the third item to that under the twelfth. He does not divide the certain sum of $30,000 and by additional words bequeath the uncertain amount to be derived after the whole estate is settled to Mrs. Van Bibber. If he had done that, then Sykes and Mrs. Van Bibber would have stood in the same footing quoad the $30,000, for all the authorities agree to the reasonable rule, that when a sum certain is to be divided, a certain part to ones another certain part to another, and the residue to a third, the legacy of the third is as clearly specific as those of the others, and they are all on the same footing. But here, the testator links the certain to the uncertain and of the sum necessarily uncertain so obtained he makes division. How can we assume that the testator disregarded what has been called “ the unknown quantity ” or hold that his mind was addressed solely to the certain fund to the exclusion of the uncertain, when he has expressly declared that the sum to be divided, is the $30,000 added to the residuary fund? We do not have here the division of a definite fund, liable to increase, but a sum indefinite and incapable of ascertainment until the final settlement of the whole estate. The case of Walpole v. Apthorpe, L. R. 4 Eq. Cas. 37, is one where the doctrine of a precise legacy with a “ chance ” for more was applied. The testator, after reciting that a policy amounted to £6,416, and that he already ap — 108 — pointed by deed two sums of £2,000 each, bequeathed £1,000 to A, £1,000 to B, and £416, residue and remainder of the moneys to be received under said policy. The amount received from the policy was £6,532. Here the division was made upon a sum certain, or at least assumed to be certain by the testator, and it showed that the testator intended to make an “ exact division.” Lord Romilly said in delivering his opinion: “ I hesitated at first on account of the subsequent words, but I am of opinion that they do not alter the character of the bequest and that the testator meant to give to the daughters of W. H. Apthorpe (to use the words of Sir William- Grant in Page and Leapingwell) — not an indefinite surplus, but a precise legacy to a certain extent, with a chance of something more.” The case of Page v. Leapingwell, 18 Vesey 463, is a leading- case on this subject. There the testator devised to Sir Thomas Hyde Page and two other trustees his house called Medford Castle in trust to sell for not less than £10,000, and then to pay several sums amounting to £7,800, and the overplus moneys “ to invest, and to pay the interest to A.” The castle sold for less than the amount named. The Master of the Rolls, said: “ The question is whether the testator did not assume, that he had £10,000 to distribute, and made his distribution upon that supposition . . . If that is so the consequence is clear. As to the mandatory clause I refer to it only as showing the intention : and that he made his will upon the clear supposition that he had at least £10,000 to portion out in this manner. He thought there might be more, and in that event he meant to give these parties the surplus, whatever that might be.” It was accordingly held that the legatees took as specific legatees, and they were required to abate among themselves. Now there was a definite fund, or at last one supposed by the testator to be certain and upon this the division was made. In the case at bar, if the testator knew the value of his estate, and it must be presumed he did, he must have supposed that something would come from the residue of the estate, and yet he requires that uncertain amount to be added — 109 — to the $30,000, and makes the division upon the basis of the uncertain sum so obtained. In Currie v. Lord Kimberly, 57 L. J. Chan. Div. 744, there is a statement of the doctrine of Page v. Leapingwell. Kay, J., said it was, “ a case in which definite portions of a definite fund are given to various persons, and then the residue of that definite fund is given to some one else — -the residue is as much a definite sum as any other part of the fund so given, and it is not residue in the ordinary meaning of that term in a will.” Elwes v. Causton, 30 Beavan 555; Booth v. Alington, 6 De G., M. & G. 613; Wright v. Weston, 26 Beavan 429; Haslewood v. Green, 28 Beavan 1; Miller v. Huddleston, L. R. 6 Eq. Cas. 65; Petre v. Petre, 14 Beavan 197; Van Nest v. Van Nest, 43 N. J. Eq. 127. In Harley v. Moon, 1 Drewry & Smale 627, it was held an aliquot portion of the residue, could not have been intended, because the fund was first to be diminished by the payment of debt and expenses, and that left the sum to be divided uncertain. So in Wilday v. Bennett, L. R. 6 Eq. Cas. 193, the testator having a general power of appointment over personal property, directed debts and expenses to be paid out of her personal estate impliedly payable out of the same fund, then gave pecuniary legacies to various persons, and then all the residue to others. It was held that the gift of the residue, was what should remain after the payment of debts, expenses and legacies, the Judge remarking that this construction of the will “ gets rid of the argument derived from the case of Page v. Leapingwell.” The case In re Harries Trust, Johnson’s Ch. R. 199, is of similar import. There Gilbert Harries, having power of appointment by deed or will of two policies of £2,000 each and all bonuses, settled £1,000 on each of his two daughters by deed, he having agreed to do so, and afterwards by his will directed that subject to the two appointments already made by deed, £1,000 should be paid to A, £1,000 to B, residue to a third person. One of the former appointees under the will having died, the claim was made, but denied by the Court, that the lapsed — 110 — interest was vested in the person who was to take the residue. It will be observed that the testator had disposed of the entire corpus of the fund and nothing was left for the residuary clause to operate upon, save the surplus in the shape of bonuses — an “ indefinite floating surplus varying from day to day as he lived longer.” It was held that it was the intention of the testator to dispose of the entire moneys secured by the policies, subject only to the charges created by previous appointments by deed inter vivos, and that by the ultimate appointment as to the residue and remainder of the said moneys, he meant to pass the whole of the rest and residue of such moneys, a balance uncertain in its very nature; and that therefore the lapsed share fell into the residue: Ashton v. Wood, 43 L. J. Chan. Div. 717. Of the case of Corballis v. Corballis, 9 L. R. (Ireland) Chan. Div. 321, much was said at the argument, but we will not advert to it'further than to point out, that the decision is. rested upon the theoiy, that the bequests were not of a particular sum, but of the proceeds of a policy entitled to accretions by way of bonus that accrued periodically, and remained uncertain during life. The Court says: “ Unless the subject of the gift is certain, or is so treated, the word ‘ residue ’ will be held to mean the entire fund, subject to the prior legacies given out of it. Here the legatee of this residue would, I think, be in this dilemma, that he must either take the residue, including the bonuses, as a residue, or admit that the bonuses did not pass to him, but were undisposed of.” The last remark may find an application in this case, for if the sum to be divided is only the $30,000, then the amount coming or that might come from the 12th item is undisposed of by the will. Mrs. Van Bibber must claim that part of the sum as residue, as the term is understood in its ordinary sense, or else she would be compelled to admit that it did not pass to her. For these reasons we are constrained to hold, that the appellee cannot require the appellants to abate, that they are entitled to be paid the several sums allotted to them out of any money for distribution under the third — 111 — item of the will and that Mrs. Van Bibber is only entitled to the residue, whatever that may be. (Decided June 29th, 1898.) The decree must therefore be reversed and the cause remanded for further proceedings. Decree reversed and cause remanded.