Opinion
05-05-1905
COLVILLE et al. v. KINSMAN et al.
Lewis Starr, for complainants. A. H. Swackhamer, for defendant Kinsman. John G. Horner, for defendant Squires.
Bill by Alexander Colville and others, executors and trustees under the will of Elizabeth Maria Louisa Paladini, deceased, against Edgar Kinsman and others, for construction of will. Decree advised.
The bill of complaint in this cause is filed by the executors and trustees under the will of Elizabeth Maria Louisa Paladini, who died testate on the 18th day of December, 1894, a resident of the county of Burlington in this state. Her last will is dated June 15, 1894, and was duly probated before the surrogate of the county of Burlington on January 15, 1895, and letters thereon were issued to the complainants named in the will as executors, etc., both of whom have qualified and assumed the execution of said will. A copy of the will is annexed to the complainants' bill. The complainants, as executors, filed their account in Burlington county orphans' court on the 2d day of July, 1896, and it was approved and confirmed by that court By that account it appears that the executors had in their hands at that time, in trust, subject to the operation of the residuary clause, which is the fourteenth item of the will, cash and securities amounting to $36,655.01. Various and conflicting claims were made upon the complainants for the distribution of this fund remaining in their hands, and they thereupon filed their bill of complaint against the several defendants who asserted rights in the fund.
The complainants allege in their bill that Henry I. Kinsman (a brother of the testatrix), who by the fourteenth item of her will was entitled to one-fourth of the income of the residuary estate for the term of his natural life, died on the 16th day of February, 1902, and thereafter that one-fourth of the income became and was payable to his son Edgar Kinsman, making the share of said Edgar one-half of the said income for life; that said Edgar, at the time of the filing of the bill of complaint, had the following named children: Pauline Kinsman and Bessie Kinsman, aged 19 and 16 years, respectively. The complainant further alleges in his bill that on May 24, 1903, Ellen G. England, one of the beneficiaries named in the fourteenth item, who by the terms thereof was entitled to one-third of two-fourths of the income of said residuary estate during the term of her natural life, departed this life; that since said Ellen C. England's death a dispute has arisen touching the disposition that complainants should make of that share of said income, namely, of that one-third of two-fourths of the residuary portion of Said estate which has accumulated since the death of the said Ellen. The claim of the said Edgar Kinsman is that, after the death of the said Ellen, the portion of said income which had theretofore been paid to her should be paid to him (Edgar Kinsman) as next of kin of the said testatrix, upon the theory that no provision for the disposition of said share after the death of said Ellen C. England is made by the will and that with respect thereto the said testatrix died intestate. The claim of the defendants Jennie Darnell and Mary Darnell is that the share of income theretofore paid to said Ellen C. England should after her death be paid to and divided between the said Jennie and Mary Darnell, upon the theory that the bequest of two-fourths of the income was a gift to a class, and should be divided into thirds as long as all of the three persons named lived, but as each died the said two-fourths of the income should be paid to the survivor or survivors in that class, which survivors they, said Jennie and Mary Darnell, claim to be. The claim of the heirs of the said Edgar Kinsman, to wit, Pauline and Bessie Kinsman, and of the complainant William B. Squires in his individual capacity, is that the portion of the income of the said residuary estate which prior to her death had been paid to the said Ellen C. England since that event should be considered to be a portion of the residuary principal of the estate of said testatrix, Mrs. Paladini, and should be invested in like manner with other moneys held as the corpus thereof, and the income therefrom should be divided as follows: Two-fourths to Edgar Kinsman during his life, one-third of one-half to Jennie and Mary Darnell, each, respectively, and the other one-third should be added to the corpus of the said estate and invested therewith; and that after the death of all the life tenants under said will, to wit, Edgar Kinsman, Jennie Darnell, and Mary Darnell, the said shares and income so retained as aforesaid, to wit, one-third of one-half (being the said portion bequeathed to said Ellen C. England during her life), should he disposed of in the manner provided for the final distribution of the principal of said residuary estate, to wit, one half to the lawful heirs of the said Edgar Kinsman and the other half to the said William D. Squires, his heirs and assigns. The complainants allege that they have in their hands at the time of the filing of the bill the sum of $139.80 representing the share of said income of said residuary estate which had accumulated to date, which during the life of said EllenC. England was paid to her, and by reason of the uncertainty and conflicting claims made thereto by the defendants the complainants are unable to decide what disposition should be made thereof. The complainants pray that it may be determined what disposition shall be made at the present time, during the life of said Jennie and Mary Darnell, of the portion of the income arising from the residuary estate of said testatrix, to wit, one-third of three-fourths, which by the terms of said will was payable to the said Ellen C. England during her life, and that it may be decreed which of the respective contentions of the said several defendants set forth in the bill of complaint is the correct interpretation and construction of said will, and for further relief, etc.
The complainants make defendants to their bill of complaint Edgar Kinsman, Pauline Kinsman, Bessie Kinsman, Jennie Darnell, Mary Darnell, and William D. Squires individually; they being the parties who in the premises of the bill of complaint are alleged to have made claims upon the said moneys in the hands of executors. The copy of the will of the testatrix, Elizabeth Maria Louisa Paladini, annexed to the bill, shows that the testatrix gave a number of specific legacies, special devises, and general money legacies in the first 13 clauses of her will, and then follows the fourteenth or disputed clause, which is in the words following: "Item Fourteenth. As to all the rest, residue and remainder of my estate whatsoever and wheresoever on the world whether real or personal, I do give devise and bequeath unto my executors and trustees hereinafter named and the Survivor of them, in trust nevertheless to for and upon the following uses, intents and purposes hereinafter mentioned, that is to say; in trust to collect and receive the income, interest, rents and dividends thereof and after paying all taxes, ground rents, interest, repairs, legacies and necessary expenses attending this trust to pay and apply the remainder of said income in the manner following, that is to say: One fourth to my brother Henry I. Kinsman during all the term of his natural life, one fourth to my nephew Edgar Kinsman during all the term of his natural life and the remaining two fourths to Jennie Darnell, Mary Darnell and Miss Ellen O. England share and share alike—that is one third of two fourths for each during all their life (Jennie and Mary Darnell being the Aunt of my said Nephew Edgar and Sister of Julia the wife of my brother Henry I. Kinsman) and from and after the decease of my Brother Henry I. Kinsman his one fourth to go to my Nephew Edgar Kinsman making my Nephew's share of the income two fourths for life, and from and after his decease I direct the principal of my estate to be divided as follows: one half to the lawful heirs of my said Nephew Edgar and the other unto my friend William D. Squires or his heirs and assigns, and further that in case that my Nephew Edgar should depart this life before his Father then and in such case my estate is to be held in tact until the decease of my brother." The testatrix also gives to her executors and trustees, and the survivor of them, power to sell and convey lands, and appoints the complainants, Alexander Colville and William D. Squires, executors and trustees of her last will, etc.
The defendant Edgar Kinsman answers the bill, without disputing the facts therein set forth, and insists that he is entitled by the true construction of the terms of the testatrix's will to have paid to him that portion of the income of the residuary estate heretofore paid to Ellen C. England, now deceased, because the testatrix died intestate of that portion, and he, said Kinsman, is her next of kin, and that none of the other defendants have any interest in or right to said income. The defendant William D. Squires, in his individual capacity, also answers the bill, substantially admitting the facts stated therein, but insisting that the portion of the income of the residuary estate which has been paid to Ellen C. England in her lifetime should be considered part of the residuary estate of the said testatrix, and should be invested in like manner with other moneys held as the corpus of said estate, and the income therefrom should be divided as follows: Two-fourths to Edgar Kinsman during his life, one-third of one-half to Jennie and Mary Darnell, each, respectively, and the other one-third held as the corpus of said estate and invested therewith; and after the death of all the life tenants under said will, to wit, Edgar Kinsman and Jennie and Mary Darnell, the said share or income retained as aforesaid, to wit, one-third of one-half (being the portion paid to said Ellen C. England during her life), should be disposed of in the manner provided for final distribution of said residuary estate, to wit, one-half to the life heirs of said Edgar Kinsman, and the other one-half to the said William D. Squires or his heirs and assigns. The defendant Squires also denies that the other defendants have any interest in the fund in question.
Issues were joined on these pleadings, and the cause came to hearing thereon.
Lewis Starr, for complainants. A. H. Swackhamer, for defendant Kinsman. John G. Horner, for defendant Squires.
GREY, V. C. (after stating the facts). The single question to be determined in this case is, what is the effect of Mrs. Paladini's testamentary gift to Miss Ellen C. England? The thing given is a definite portion of the net income of the residue of the testatrix's estate. There can be no doubt, I think, that the testatrix did not intend to give this two-fourths portion of the income to a class of which Jennie and Mary Darnell and Miss England were component members. Theuse of the phrase "share and share alike" implies a gift of this portion to the beneficiaries as tenants in common in equal shares, and not a bequest to them as joint tenants of the whole, with a right of survivorship. Court of Appeals in Post v. Herbert, 27 N. J. Eq. 547; Dildine v. Dildine, 32 N. J. Eq. 79. The same conclusion follows from the testatrix's further definition of the nature of her gift to these three legatees, for she says: "That is, one-third of two-fourths for each during all their life." She intended each to have one-third; not all of them to have it all. The claim advanced by Jennie and Mary Darnell that they take Miss England's one-third, because they are the survivors of a class to whom the portion was given as an entirety during their joint lives and the life of the survivor of them, is inconsistent with the expressed words of the will and the manifest intent of the testatrix, and must be rejected.
The contention in behalf of the defendant William D. Squires is that Miss England's share of the income of the residuary estate became, upon her death and thereafter, a part of the principal of the estate, and should, as each payment of income falls due, be added to the corpus, and upon the death of the life tenants should be finally divided as provided in the will, one half to heirs of Edgar Kinsman and the other half to the defendant Squires. It should be noticed that the testatrix contemplated the residue of her estate as a principal fund, which should be used to produce an income. The quantity of the principal is, by the terms of the will, fixed at the time of the testatrix's death. Nothing in the will indicates that the testatrix intended any accession to or increase of this principal fund after her death from any source. After creating the income-producing fund, she invariably in the will deals with the estate in separate portions, as principal and as income therefrom. She finally disposes of the corpus of the fund, describing it as "the principal of my estate," evidently meaning the same fund originally created, and without increase. This accords with the view taken by the Court of Appeals in Sandford v. Blake, 45 N. J. Eq. 254, 17 Atl. 812, interpreting a similar will. The testatrix dealt with the income by giving the whole of it in certain aliquot portions to named legatees for life. She probably expected the' other life legatees to die before the time of the death of her nephew Edgar Kinsman, on the happening of which event (if her brother Henry Kinsman had previously died) she directed the principal fund to be divided between the heirs of Edgar and the defendant Squires. If this ultimate gift over is forceful against any life tenant of income who may survive Edgar Kinsman, it will necessarily defeat that life tenant's estate in the income. It is, I think, quite plain that the purpose of the testatrix in making these bequests was to provide during their lives for the named legatees the proportionate sum of income which she gave to each. If the life tenant of income shall die in such an order of succession that Edgar Kinsman shall be the last survivor, then on his death the principal fund can be divided without affecting the interests of any life tenant. Though the testatrix deals with her gifts to the life tenants exclusively as shares of income to be produced by a principal fund, which upon the death of Edgar Kinsman she directs to be divided, she has failed to express any testamentary purpose disposing of the share of income of any life tenant who might die before the death of Edgar Kinsman. Without such expression from the testatrix in her will, there is nothing which enables the court to ascertain what she intended should be done with any shares of income which she has directed to be paid to named legatees during life, in ease that legatee dies before the end of the income-producing period. This is what has happened regarding Miss England's share of income. There was no lapse of the gift to Miss England, for at the time of the death of the testatrix Miss England was living, and the bequest to her then became effective. It was not for any reason a void or illegal gift Nor has it failed to operate, for Miss England survived the testatrix and received her portion of income for several years and during her life, according to the terms of the will. This gift of the income from the residue is equivalent to a gift of a limited use in the residue itself. The will devotes to the production of income the whole residue, at least during Edgar Kinsman's life, which income the testatrix divides into portions and gives to named legatees during their several lives. Whether all or any of them live or die, however, if Edgar Kinsman lives, the whole principal trust fund must go on producing income, for the testatrix has so directed. The share of income arising from the residuary estate in favor of any life tenant who dies during the income producing period does not, under the terms of this will, become converted into and a part of the principal fund, which produces the income. The gift of the income, as the testatrix has expressed her will, is itself in the nature of a residuary gift. She gives over the principal to ultimate legatees, but not the income. In such cases, to the extent that the gift of the residue fails, because of the death of the life tenant, the will becomes inoperative, and the testatrix to that extent dies intestate. Garthwaite's Executors v. Lewis, 25 N. J. Eq. 351; Hand v. Marcy, 28 N. J. Eq. 59; Burnet v. Burnet, 30 N. J. Eq. 509, and cases there cited; Sandford v. Blake, ubi supra.
The result is that the claim of the defendant William D. Squires must be rejected, and the contention of the defendant Edgar Kinsman must be sustained, that the testatrix died intestate of that part of the residuaryincome bequeathed to Miss England, which has arisen or shall arise after Miss England's death, and before the end of the interest-producing period. Edgar Kinsman, as sole next of kin of the testatrix, is entitled to the portion of the residuary income bequeathed to Miss England. If any life tenant of the residuary income shall outlive Edgar Kinsman, a question may arise whether, under the will, the life tenancy of income shall be defeated by the division and payment of the principal fund to the ultimate legatees, Edgar Kinsman's heirs and the defendant Squires, or shall continue during the life of any legatee of income who may survive Edgar Kinsman. That question is yet in the future, and no opinion is intended to be now given upon it.
A decree will be advised in accordance with the views above expressed.