The claim made by the widow that there is no limitation by the will of the principal of the estate, as well as her other claim that the trust is illegal in point of duration, and therefore void, so that sustaining either of her claims would make a case of intestacy and allow her to come *Page 135 in under the statute of distribution for one-half of the personalty, which is far the larger share of the estate; these claims make it necessary to give a decision on the points thus taken, as they lie back of the questions of the disposition of income and the sale of unproductive property.
That the testator's nephews and neices are not parties to this suit, interposes no objection to our passing upon these points, since, first, it is not certain, from the tenor of the will, that those now in being will, by surviving their parents, be ultimately entitled; and, secondly, as the widow has not seen fit to ask for their being made parties, or to take objection because they have not been so; it does not rest with her to say that a present decision of these points will not conclude her as well as all others who are parties to the suit.
The third and fourth clauses of the will, so far as they relate to the same subject-matter, are to be construed together; and if one is inconsistent with the other, that is to be held the true, effective clause by which a binding disposition will be made, rather than that by which the will would be rendered inoperative or void. Guided by this rule, and conceding that the third clause disposes merely of the income in any event, it is plain that the fourth clause, which directs that, on the death or marriage of the wife, the "estate remain in trust for the use of my said brother and sisters during their respective lives, and theremainder to go to their children," disposes of the remainder of the estate and not of the income; that is, makes full disposition of the entire trust estate. And in case there be no taker of a part of this estate, under this clause, by reason of the death of the brother or one or more of the sisters without leaving a child, then we resort to the third clause, to find where such one-third part of the estate is to go.
We thus find this to be the disposition of the estate: The whole title is in the trustees for the benefit of two classes of persons — one, the widow during life or widowhood; the other, the brother and two sisters "during their respective lives." And as the limitation to the widow may (as the event has proved) exhaust the income, or whether it does or not, this part *Page 136 of the limitation is undoubtedly good, and makes a valid trust estate. The trust to pay to the brother and sisters each one-third of the residue of the income during their respective lives is also valid; and if either of them die childless, "thenthe share of said child" (that is, the share that would have gone to the child of the deceased brother or sister, had there been such a child, which share, as the fourth clause is above construed, is one-third of the estate, subject to the trust for the life of the widow, should she survive such brother or sister so dying) is to go to the survivor or survivors of such brother and sisters. If such death occur during the widow's life (or widowhood) the equitable interest in such one-third vests at once in the survivor or survivors, to be followed by the conveyance of the legal title, whenever the life estate or widowhood is at an end. If such death occur after the determination of the widow's life, c., then the conveyance of the legal title of such one-third is to be made at once. This is, for each one-third, respectively, a legal limitation. And we are not to make void what is legal, by speculating on the possibility of an event by which such a disposition could not be made. So far as it is legal we sustain it, and carry out the intent of the testator as far as may be. When any other exigency occurs, the courts will find for it the appropriate rule.
As to the position that the widow is entitled to dower in the realty, besides her annuity, it is effectually disposed of by the fact that she has, by accepting her annuity from the trustees, affirmed the estate in them; and that estate is in and of the whole property of the testator, leaving nothing of which to endow her. She has elected to take under the will, and cannot assert a right against it.
Under the trust, then, what are her rights and what is the duty of the trustees? By the second clause, her annuity is expressly to be paid out of income, $8,000; by the third clause, her annuity is reduced to $7,000, so that the testator necessarily supposed the income would exceed the annuity; and the "residueof the income," after paying her the $7,000 (for there is no other legacy to be paid so as to leave a *Page 137 residue), is bequeathed to the brother and sisters. There is no possibility of understanding this otherwise than as a legacy to be paid out of income. And it is equally plain that it must have been intended to be paid out of the net income of the estate, otherwise, as the sum of $7,000 is given out of income, and the residue of income is given over, this residue would call for all the gross income of the estate, and the principal would of necessity be annually decreasing, by the amount of all the expenses of the estate. This could never have been intended, especially by one who limited over the principal — all the principal — after life estates.
It is not consistent with this view, that, if the net income of any one year should be unequal to paying the widow's annuity for that year, she should have a debt due to her from the trust estate, equal to the deficiency, to be paid out of subsequently accruing income. The contingency is one not contemplated and not provided for, and she, as the legatee, sustains the loss caused by omission. So long as the construction of wills is limited to finding and carrying out (as far as the law allows) the intention of the testator, it hardly seems possible to hold that a testator who plainly supposed the income of his estate more than adequate to the payment of an annuity, intended to give an annuity which would, or might, annually reduce the principal of his estate till the payment of any part of the annuity would become impossible by the using up of the whole estate.
As to the power of the trustee to sell, or calling it a direction to sell, it is merely to sell for the purpose of investment in more productive property, and with no view to the payment of any legacy or to interfering with the principal of the estate in any way but to increase it, or make it produce a larger income for the benefit (as intended) of the takers of the residue of the income.
Such a power, involving judgment and discretion as to what may properly be called "unsafe or unproductive;" judgment and discretion, also, as to the possibility of selling such property at a price not ruinously low; judgment and discretion, further, *Page 138 in investing the proceeds in safe and productive securities, is necessarily of a nature not to allow the interference of the courts. The testator has selected the person on whom to confer this large discretionary power, and that person is to proceed according to his discretion, while he will be responsible for only the exercise of such prudence as he uses in the discharge of his own business. While the court have no right to direct his actions, they see no reason to question his having acted in entire good faith; and the unfortunate results, as to parts of the estate, are in no degree to be attributed to either want of care or want of judgment on his part, but are merely the unfore seen and unavoidable consequences of calamities for which he is not responsible.
There seems no reason why the decree of the Supreme Court at general term, should be disturbed. It should be affirmed.
DAVIES, J., also dissented.
Judgment reversed.