[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 487
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 488 The sole complaint made by the appellant of the decision below is, that it ordered her share to be paid and delivered to the New York Life Insurance and Trust Company, instead of to her. Her claim is that she was entitled to such share absolutely, and if not, that she was entitled to have it paid and delivered to her either with or without security therefor on her part. *Page 490
The will and the codicil together constitute the last will and testament of the testator, and to arrive at his intention they must be considered and construed together.
It is undisputed that a testator may in form make an absolute bequest of personal property to one, and then limit it over upon his death to another. The limitation in such case is not void for repugnancy, but qualifies the bequest.
It is, also, undisputed that in such a case a testator may provide that his executors shall take the property in trust, and hold and manage it for the benefit of the cestui que vie, and then deliver it to the one entitled to the remainder, and that such a trust may be created by express words or implied from all the terms and provisions of the will.
It is not very important to determine the precise meaning of the will standing alone, as it is superseded by the codicil so far as that speaks plainly.
It is clear that the share of each daughter was to be kept entire during her life. Under the will the property was to be divided into equal shares, and each daughter was to have one share. Such share was to be secured to her separate use during her life, free from the control of any husband, and if she died without issue, she had the right to dispose of one-half of the property constituting her share by will. If the will contained nothing more it would be clear that the corpus of each share was to be kept, and that each daughter was simply to have the use of her share during her life. But there is the further provision that in case any daughter died without issue, "such portion of her property as may remain at the time of her death," should go to her surviving brothers and sisters, subject to her right to dispose of one-half by will. It is doubtful what the testator meant by the words quoted. He may have meant such portion as might remain after all diminution from losses, bad investments or other misfortune; or he may have meant (and such is the claim of the appellant) that each daughter might use so much of her share as she chose to, and then that what remained should go over. If the latter was his meaning, then each daughter would take an *Page 491 absolute estate in the property as the power to use up thecorpus implies an absolute ownership thereof, repugnant to and destructive of the limitation over after her death. (Hill on Trustees, 74; Pierson v. Garnet, 2 Bro. Ch. Rep., 46; Bland v. Bland, 2 Cox, 349; Jackson v. Bull, 10 J.R., 19;Jackson v. Robins, 15 id., 169; Helmer v. Shoemaker, 22 Wend., 137; Annin's Exr. v. Vandoren's Admr., 1 McCarters [N.J.], 135; Ide v. Ide, 5 Mass., 500.) But the codicil makes it entirely clear that the corpus was to be kept entire during the life of each daughter. The sixth clause of the codicil purports to have been inserted therein, to make clear any obscurity in the will or to the title to the property given to the children. The testator there divides his property into equal portions, and gives to each of his sons one portion absolutely, and to each of his daughters an estate for life in one portion. He then gives the remainder, that is, the same portion after the termination of the life estate, to the daughter's issue absolutely, subject to the right of the daughter to dispose of one-half of her share by will, and in case she should die without issue, then such portion of her share as she had not disposed of by will is to go to her brothers and sisters. All these provisions show clearly that it was the intention of the testator that the corpus of each share bequeathed to the daughters for life should be kept entire, and that unless she elected to dispose of one-half or a less portion by will, that the whole of the share should go to those entitled in remainder, and in case of such election, that the portion of the share not thus disposed of should go to the same persons. These provisions of the codicil could not have effect if the daughters could, during their lives, use up the whole or any portion of the corpus. The construction contended for by the appellant would defeat the whole scheme and purpose of the will, and should not be adopted unless the language used, under the rules of law applicable, plainly requires it, and that it does not is sufficiently clear.
The power of each daughter to dispose of one-half of her share by will, does not enlarge her estate during her life. The *Page 492 failure to exercise the power, in the mode specified, would leave the property, unaffected by the power, to pass over to those entitled in remainder. (4 Kent, 319; Jackson v. Robins, 16 J.R., 588; Terry v. Wiggins, 47 N.Y., 512; Taggart v.Murray, 53 id., 233; Pennock v. Pennock, L.R., 13 Eq., 144.)
It is claimed on the part of the plaintiff, that the clause in the will which requires the executors to secure the portion of each daughter to her separate use for life, free from the control of any husband, in connection with the other provisions of the will, implies a trust in the executors to take and hold the property and pay or apply the income for the benefit of the daughters. This is probably so. But I think this clause is modified or abrogated by the codicil. When the codicil was executed the testator, upon better advice or information, or upon more mature reflection, may have concluded that a trust expressly to protect the property of his daughters against their husbands was unnecessary, and that he might rely upon the statutes of the State to do that. He then, defining the title each legatee was to take in direct language, gives each daughter an estate for life in her portion, and then after death gives it absolutely to those taking in remainder. He uses no language evincing an intention to create any trust. It is like the bequest of a general residuary estate to A for life with remainder to B after A's death, in a will in which executors are appointed. In such a case there is no other trust than the law creates and vests in the executors. They take the legal title to all the personal property. They must convert it into money, pay debts, expenses and specific legacies if any, and as they are bound to execute all the provisions of the will, they are charged with a duty as to both A and B. They must give to A what belongs to him, and then to B what belongs to him. They cannot discharge their duty by delivering the whole property to A and thus imperiling the rights of B. (How v.Earl of Dartmouth, 7 Ves., 137.) Judge WILLARD, in his work on executors, page 389, lays down the rule as follows: "When there is a general bequest to one for life *Page 493 and remainder over, the executor should convert the whole into money and invest it in permanent securities. The interest only is payable to the tenant for life and on his death the residue belongs to the remainder-man." Similar language was used by the chancellor in Spear v. Tinkham (2 Barb. Ch., 211), Clark v.Clark (8 Paige, 152), Covenhoven v. Shuler (2 id., 122), and in other cases. But the same result is reached in another way. When the remainder-man is willing and able to give security for the fund, it has been considered just that he should receive it so that he could manage it and reap all the income he could make, free from the charge of commissions by an executor or trustee. In such case care should be taken to secure the corpus of the fund or estate for the remainder-man, and the security taken should be adequate for that purpose.
In Tyson v. Blake (22 N.Y., 558) the testator gave to his granddaughter a share of his residuary estate, and provided that if she should die without issue, it should at her death go over to persons named; and it was held that the granddaughter was entitled only to the use of her share during her life, and that it could be paid to her only upon her giving adequate security for it. (See, also, Homer v. Shelton, 2 Met., 194, 206, 218;Covenhoven v. Shuler, supra, p. 132; Webber v. Webber, 1 Sim. Stu., 311.)
It follows, from these views, that the appellant was entitled to have her share paid to her upon giving adequate security that the corpus of the estate should be kept so that at her death it may pass to those who will then be entitled to it.
The judgment below must, therefore, be so modified as to authorize the appellant at any time to apply to the Supreme Court to have the fund delivered to her upon her giving security as above-mentioned, and the judgment as thus modified must be affirmed, and the costs of both parties in this court must be paid out of the estate in controversy.
All concur, except CHURCH, Ch. J. and MILLER, J., dissenting; ANDREWS, J., absent.
Judgment accordingly. *Page 494