The bill was filed in September, 1852, and states in substance that Robert Taylor died in May, 1847, having duly executed his last will and testament, leaving him surviving four children, one of whom is the defendant, Richard P. Taylor, and two grandchildren, viz., Robert T. Pelham, the complainant, and his sister Susan, who are the children of a deceased daughter of Robert Taylor.
Robert Taylor bequeathed to his wife, Mildred Taylor, an annuity of twelve hundred dollars, chargeable upon his whole estate, and to be paid semi-annually. After specific bequests to Robert T. and Susan Pelham, he directed that the residue of his estate should be divided between his four children and Robert T. Pelham and his sister Susan, so that the shares of the two last should together equal the share of one of his four children. He further directed that their shares should be held in cross-remainders in case they should die without issue them surviving; and in case the survivor should die without issue and intestate, his share, as well as any accumulation thereon, should go to this other children or grandchildren, the latter taking by stocks, (122) declaring that it was not his intention to prevent such survivor from disposing of the same as he or she might think proper. The limitation over was itself subject to a limitation in favor of the husband or wife of the survivor, who was to receive such portion of their shares, whether original or accumulated, as he or she would have been entitled to at law.
In 1847 Richard P. Taylor and others were appointed executors of Robert Taylor, and about the same time the said Richard was appointed guardian for the complainant and his sister Susan, they being under age. The executors agreed to set apart a fund sufficient to raise two hundred dollars annually towards the payment of the annuity, and to divide the rest of the estate, debts, etc., being paid among the several legatees, and that each legatee should pay semi-annually a ratable part of the remaining portion of the annuity.
Richard P. Taylor, as guardian to Robert T. and Susan Pelham, paid semi-annually $100 towards said annuity, that being their ratable portion, and charged himself with the same in his account as guardian. *Page 84
In 1848 Susan died under age without issue and never having been married. Her estate becoming vested by the limitation in Robert, was transferred to his account by his guardian.
Since that time Robert T. Pelham has attained the age of twenty-one and has called upon Richard P. Taylor to come to a settlement, which he refuses to do unless he be allowed to retain in his hands sufficient to raise the ratable part of the annuity, or the plaintiff should otherwise sufficiently provide for its payment. The defendant also doubts whether it be not his duty, as executor, to require security for the forthcoming of the property in case of the death of Robert T. Pelham without issue and intestate.
The answer admitted all the statements in the bill to be correct.
(123) Set for hearing on the bill and answer and removed by consent. Two questions are presented:
1st. There is no doubt that in pursuance of the arrangement by which the property came into the hands of the defendant, as guardian, the plaintiff is bound to secure the semi-annual payment of $200 to the widow of the testator during her life, that being his ratable part of the annuity not otherwise secured. This he may do either by bond with personal security or by a conveyance of a part of the property sufficient for that purpose, as may be arranged between the parties.
2d. The plaintiff, as survivor, is entitled to the share given to himself and his sister, together with any accumulation thereon, and takes the absolute property therein, with the right to dispose of it as he may see proper, by will or otherwise, subject only to a limitation over to the children and grandchildren (who may be the children of any deceased child and are to take by stocks or per stirpes) of the testator in the event of his dying intestate and without leaving a child living at his death, which limitation over is itself subject to a limitation to the wife of the plaintiff if he should marry, of such share as she would be entitled to by law in the event of his dying intestate, leaving a widow.
When the case was opened a very interesting question was suggested, that is: Is not the limitation over void as being repugnant to the absolute right of disposition? The case was held under an advisari to consider of this question. We are satisfied the question is not presented as the case now stands, and therefore are not at liberty to decide (124) it, for suppose the limitation over is not void, it is very clear that the plaintiff is entitled to have the property delivered over to him, to be disposed of as he may think proper, without giving security for its forthcoming. *Page 85
If property be given to one for life with a remainder over, the executor has no right to require a bond for its forthcoming. That must be obtained at the instance of the remainderman, if there be good ground to fear that the property will be destroyed or taken to parts unknown; a fortiori, the executor cannot require a bond where the property is given with the absolute power of disposition. The only contingency in which the question as to the repugnancy of the limitation over can ever be presented is the death of the plaintiff intestate without a child and without having disposed of the property. Should all of these doubtful events happen, and the plaintiff have creditors who have acquired no specific lien on the property, they may raise the question as to the validity of the limitation over. We will not speculate on such remote possibilities.
The plaintiff is entitled to an account if he desires it. His rights will be declared as above. It is usual in such cases to decree the costs to be paid out of the fund, but the defendant's grounds for refusing to come to an account and deliver over the property are so untenable, particularly as no difficulty was made in regard to securing the ratable part of the annuities, that we do not allow the defendant his costs.
Decree accordingly.
(125)