[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 130 The only question which I think it necessary to consider, in this case, is whether the bequest of the annuity of $7,000 a year, to the testator's wife, was specific, in the sense that if it could not be paid out of the fund indicated — namely, the income of the trust estate — it was to fail, or to abate, in the proportion that the indicated fund should prove deficient; or, on the other hand, whether it was intended by the testator that it should be paid; at all events the income of his property given to his trustees being pointed out, by way, as it is called, of demonstration. I am of opinion that the last-mentioned construction is the one which we are bound to place upon the instrument. The authorities upon the question are very numerous; and the most prominent of them have been referred to by the counsel for Mrs. Edwards, the appellant. It will be seen, by an examination of them, that no positive rule of ready application to every case can be laid down, but that each case will depend upon a consideration of all the material provisions of the will to be construed, and of the extrinsic circumstances respecting the testator's family and estate, which may be fairly brought to bear upon the question of intent. The leading principle of the cases is, that when the testator bequeathes a sum of money, or, which is the same thing, a life annuity, in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled, merely by a direction in the will that the money is to be raised in a particular way, or out of a particular fund. (Sir JAMES WIGRAM, in Dickin v. Edwards, 4 Hare, 273.) There is, in this will, a positive direction to his executors (who are also made trustees), to pay to the testator's wife eight thousand dollars per annum, if he shall leave children, and seven thousand dollars per annum, if he shall not; but, as to the first mentioned sum, it is parcel of the direction, that it is to be paid out of the income of the estate; and it is plausibly argued, that the same qualification is annexed, by implication, to the direction to pay the seven thousand dollars per annum, in the event, which has happened, of there being no *Page 132 children. The evidence, and the admissions of the parties, show that the testator supposed himself to have a clear income, arising upon invested property, sufficient to pay the largest of the annuities, and to leave a considerable surplus of the income, which he destined for the benefit of his brothers and sisters. But their right to participate was to be subordinate to that of the wife, who was to be paid her $8,000, or $7,000, as the case might be, before anything should be paid to them. It now appearing that he was mistaken as to the sufficiency of his revenue to pay continuously even the smallest of the annuities, which the event has shown to be the only one which can be claimed, and that only a portion of it can be paid from the income, the question arises, which was the primary and most material portion of the testator's intent, and which was, in his mind, the incident to such primary intention. Manifestly, it seems to me, it was that his widow should receive one or the other of the alternate sums mentioned, according to the event. In the first place, this annuity was the only provision made for her, in any part of the will. He contemplated that there might be issue of the marriage between himself and his wife, for he graduated the amount of the annuity by that circumstance; but if the provision is to be strictly conditional upon his estate continuing to yield income, it might happen that his wife and children would be without any means of support, derived from his estate, while the estate itself might be of vendible value to a large amount. It was shown that a large sum had been invested in unproductive lands, from which, of course, no revenue could be expected. It is not suggested but that the personal property, stocks, vessels, c., may be converted into money, at some reasonable price. It is shown, indeed, that in the present condition of the property, sufficient income will not be realized to pay the annuity in full; — whether this would be so, if it were converted into money, does not appear from the case.
But it is argued, on behalf of the brothers and sisters, that the testator is to be considered as equally solicitous to bestow *Page 133 a pecuniary benefit upon them as upon his wife, or his wife and children, if he should have children. Hence, it is suggested that his wishes and intentions will not be altogether disappointed, if, upon the failure of income, the body of the estate is kept unemployed during the lifetime or widowhood of his wife for the benefit of his brothers and sisters. This view seems to me very unreasonable. The brothers and sisters were not the primary objects of these dispositions. They were only to participate in the income, provided it should be so large as to produce a surplus after applying to his wife and children the sum which he thought it necessary for them to have. There failing to be any such surplus, the benefits intended for them were to be postponed, until after her death. But it was only on a contingency that they were then to have any interest; for if the testator should leave children, the brothers and sisters would be wholly excluded from participation. Again, in the event of there being no children, the brothers and sisters did not occupy so favorable a position as that of devisees in remainder, after the death of his wife; for it was their children, and not themselves, who, upon the event of the extinction of his own family, were to become the final beneficiaries of the estate. And, further, the first paragraph of the fourth division of the will proves, beyond question, that the testator had no such intention as is attributed to him, of confining the widow strictly to a participation in the income, and of preserving the whole of the principal for the benefit of the brothers and sisters, and their issue. The provision is that if there should be children, upon their attaining their majority, the sum of eight thousand dollars per annum should still be reserved for the benefit of his wife. It cannot be pretended that this provision was limited to the case of his investments yielding income to the required amount, for the direction is positive and unconditional, that such a sum should be reserved for her. If the property, as invested, was unproductive of income, it would be the duty of the trustees, by the purchase of a life annuity, or in some other way, to secure the payment of the yearly allowance mentioned. *Page 134
If we were to hold that the widow was to have nothing, less the property or securities in which the estate happened to be invested yielded income, and that she was not to be paid the full seven thousand dollars per annum, directed to be paid to her, unless the investments should happen to yield that sum, we should, in my opinion, sacrifice the substance and primary intention of the will for the sake of an incidental provision, inserted for the convenience of the estate, and not intended to limit or control, or to render uncertain or conditional, the provision in her favor; and I think, moreover, that the case is within the spirit of the authorities which have been referred to by the counsel for the appellant. To these may be added, for the purpose of presenting an early and a recent case, TheAttorney-General v. Parkin (Ambler, 566), and Colvette v.Middleton (3 Bevan, 520); and, also, for a recognition of the doctrine in this court, Teft v. Porter (4 Seld., 566),Giddings v. Seward (16 N.Y., 365), De Nottebeck v. Astor (3 Kern., 104, 105).
I see no reason for interfering with or attempting to regulate the discretion of the trustees, upon the subject of the sale of the unproductive or the unsafe property. The right of the widow to the annuity does not, in our opinion, depend upon such sales. The trustees should be guided by the circumstances of the property, and the necessities of the estate. There are not sufficient facts before us to show whether, at present, a sale would, or would not, be judicious.
I am in favor of reversing the judgment of the Supreme Court, and of entering a judgment in conformity with the foregoing views, — to be settled before one of the judges.
WRIGHT, ALLEN and SMITH, Js., concurred.