The principal object of this suit is to procure from the court a construction of the twelfth clause of the will of the late Robert Rogers, and, if the construction given will admit of it, a decree directing an immediate division of the property devised and bequeathed by the twelfth clause among the persons beneficially entitled to it.
By the fourth clause of the will the testator gives his wife for life, and in lieu of dower, the income of certain stocks, which are nominally of the value of $77,900, but really of a much greater value; after her death he gives her sister an annuity of $1,500 out of the income of the stocks, and the residue of the income, during the life of the annuitant, to his brother Daniel's children, or their heirs-at-law, and, after his wife and sister are both dead, he directs that "the said stocks be equally divided among the children of my brother Daniel Rogers, or their legal heirs-at-law, or held in trust by my said brother, with power of naming substitutes at his option, and I do bequeath the same accordingly."
The twelfth clause is as follows: "Twelfthly. I do hereby give bequeath and devise to my brother Daniel Rogers in trust with power to name and appoint a successor or successors all the residue and remainder of my estate real personal and mixed not herein otherwise bequeathed and devised to have and to hold the same for the following purposes viz. In the first place and before any other claims on this fund are satisfied to pay any deficiency each and every year it occurs on the three thousand dollars per *Page 71 year given to my wife Maria Rogers under the fourth bequest of this will. In the second place to divide all the remainder of the property hereby devised and bequeathed after the decease of my wife Maria Rogers and before his own decease (if he so chooses to do) equally between his eight children now living or their legal heirs per stirpes and not per capita if any of them be dead when this bequest takes effect and to trustee all or any part of the property so divided among his eight children or their heirs-at-law through his blood by placing it safely in the hands of two or more honest and competent persons to hold and pay the income thereof to his eight children or their heirs-at-law through his blood per stirpes and not per capita as it is received and that part of it which may belong to his daughters married or single to be so trusteed as that the income thereof shall be paid to them or either of them on their own receipt and after the same shall have accrued and without the intervention of any creditor or husband and all the property so trusteed on the said daughters' decease to descend to their own children or in default thereof to their heirs-at-law through their father's blood per stirpes and not per capita and I do hereby devise and bequeath the same accordingly."
Robert Rogers died in 1870. His widow is seventy-eight years old. Her income under the fourth clause has not been less than $6,000 per annum, and is not likely ever to fall short of $3,000 per annum. She is offered ample security against loss in case it should happen to fall short of that amount. She has no wish to have the trusts of the twelfth clause kept alive for her benefit. It therefore seems unnecessary to await her decease before dividing the property bequeathed by that clause if it can be previously divided without prejudice or the possibility of prejudice to the right of any other person.
Very clearly the division cannot be now made with a certainty that no other person will be prejudiced by it, unless the estates and interests created by the twelfth clause are vested; for if they are contingent, it cannot be known with certainty, until the happening of the contingency, who are the persons who will be entitled to share in the division. Are they vested? It is argued that they are, and that the provision of the twelfth clause, which postpones the time of division, does not postpone the vesting until the *Page 72 division, but simply postpones until then the full enjoyment of the property. We will consider first whether this is the correct construction of the twelfth clause.
The cardinal rule, in this as in other points of construction, is that the intention of the testator must govern if it can be ascertained. But the law favors vesting, and, if the intention be doubtful, a legacy will, if possible, be held to be vested rather than contingent. Mr. Redfield, in his Treatise on the Law of Wills (vol. 2, p. 627), says the more recent English cases establish the proposition "that no estate will be held contingent unless very decisive terms of contingency are used in the will, or it is necessary to hold the same contingent to carry out the other provisions and implications of the will."
The questions then are, Did the testator intend, or has he used language clearly denoting contingency? or, Does the will contain any provision or implication which requires that the estates shall be contingent? If not, then the estates are to be construed as vested.
The leading purpose of the twelfth clause is to provide for a division of the residue of the testator's estate among the children of his brother Daniel, or, in case of the decease of any of them before the taking effect of the bequest, among the children then living, and the heirs-at-law, so called, through the brother's blood, of the children then deceased. The testator seeks to effect this purpose through the medium of a trust, which is also first to serve another purpose, namely, the guaranteeing to his wife an income of not less than $3,000 per annum. And apparently in view of this contingent trust in favor of his wife, the division is deferred until the decease of his wife. But beyond this he appears to have wished that his brother Daniel should have a certain control over the property, for the purpose of securing it the more exclusively to his children and their descendants. He therefore gives him a twofold discretion: first, to postpone the division during his own life; and, second, to trustee all or any part of the property when divided, so trusteeing the shares of the daughters as to protect it from husbands and creditors and secure its descent, after the decease of the daughters, to their own children or heirs-at-law through the father's blood.
There are three features of the twelfth clause which deserve *Page 73 special consideration: first, the delay in the division; second, the fact that the persons who are to share in the division are to be determined by reference to the time "when the bequest takes effect;" and third, the powers which are conferred upon Daniel Rogers, in making the division, to trustee the property divided.
1. Is the fact that the division was not designed by the testator to be made until after the death of his wife, a fact from which we ought to infer that the devise or bequest was intended to be contingent until her death? The bequest is a bequest of the residue to Daniel Rogers in trust, to divide it among his children, c., after the decease of the widow and before his own decease if he chooses. If it had been a bequest to him in trust for his children, c., to be divided among them after the decease of the widow, there is no doubt upon the authorities that it would be construed as conferring vested interests, in the absence of other language importing a different intent. The bequest, where such language is used, is present and absolute; the division only is suspended until a future time. Is the language which has been used to be construed in the same way? It has been held that, where the bequest is made in the form of a direction to pay or divide at a future time, the vesting will be postponed till then, for the reason that, inasmuch as the bequest consists in the direction to pay at a future time, it is in effect a bequest at that time, not an immediate bequest. The case at bar appears, at first blush, to fall within this rule. But this rule was designed to be used simply as a key to the intention, and will not be applied to contravene the intention of the testator, when it is otherwise disclosed. Thus the rule is not applied where the direction to pay at a future time is coupled with a direction to pay interest in the mean time. The testator, by allowing the legatee to have the interest, is supposed to recognize him as the owner of the principal. InLeeming v. Sherratt, 2 Hare, 14, the rule is considered by Vice-Chancellor Wigram, and the limited effect which it is entitled to have, as a rule of construction, is luminously explained. If the future time is fixed not for the purpose of making the legacy dependent on its arrival, but simply to defer the day of payment, then the legacy vests immediately, to be paid or delivered when the time arrives. And in order to ascertain *Page 74 in what view the future time is appointed, we are not to confine our attention to any single point, or any isolated expression, but to seek the intention of the testator from the four corners of his will.
In In re Bartholomew, 1 Mac. G. 354, the bequest was in the form of a direction to pay £ 2,000 to the children of the testator's daughter after her decease, as and when they should severally attain the age of twenty-one years, and closed with the words "to whom I give and bequeath the same accordingly." Lord Cottenham and Sir Lancelot Shadwell held that the legacies were vested, upon the ground that there was a gift to the legatees, independently of the direction to pay, in the words, "to whom I give and bequeath the same accordingly." In Locke v. Lamb, L.R. 4 Eq. 372, 380, however, Malins. V.C., while he confesses that he should feel bound by this decision, says he cannot see the distinction which Lord Cottenham drew from the words "to whom," c., and that to him the words appear to be a mere redundancy. In the case at bar the twelfth clause closes with the words, "and I do hereby devise and bequeath the same accordingly." The words have been pressed on our attention, and doubtless are not to be overlooked in view of the opinion of Lord Cottenham, though we do not clearly perceive that they do more than express what would be implied without them.
The bequest under consideration is residuary, and, in some cases of doubt, the fact that the bequest was residuary has been deemed a reason for construing it to be vested. Staples Pearce v. D'Wolf, 8 R.I. 74, 120; Jones v. Mackilwain, 1 Russ. 220; Booth v. Booth, 4 Ves. Jun. 400; Leake v.Robinson, 2 Mer. 363, 386; Lee v. Busk, 14 Beav. 459.
So when the delay is for the sake of some object independent of the legacy, it is not considered incompatible with the vesting of the legacy. In Packham v. Gregory, 4 Hare, 396, where the bequest was in the form of a direction to pay and divide within six months after the death of the person beneficially entitled for life, the interests were held to have vested. "The time," it was said, "was allowed for the discretion of the trustees and the convenience of the estate, and for those purposes only." And in that case, Wigram, V.C., remarks, that if, upon the whole will, it appears that the future gift is only postponed to let in some *Page 75 other interest or for the benefit of the estate, the delay does not suspend the vesting, but only postpones the enjoyment. In the case at bar the division is delayed apparently for the security of the widow, and not with a view to make the gift conditional upon the arrival of the time for the division. It is true the division may be delayed, in the discretion of the trustee, even after the death of the widow; but evidently the testator intended by this no more than by the provision for a new trust, namely, not contingency, but the more effectual promotion of the purposes of the bequest. And see Poor v. Considine, 6 Wall. 458;Eldridge v. Eldridge, 9 Cush. 516. When it is in doubt, says Chief Justice Shaw, in the case last cited, whether the words of contingency or condition apply to the gift itself, or to the time of payment, courts are inclined to construe them rather as applying to the time of payment, and to hold the gift rather as vested than contingent.
The first purpose to be served by the trust created by the twelfth clause is thus expressed: "In the first place, andbefore any other claims on this fund are satisfied, to pay any deficiency each and every year it occurs on the three thousand dollars per year given to my wife, Maria Rogers, under the fourth bequest of this will." The language imports that the testator supposed that the trust fund would be subject each andevery year to claims other than the contingent claim of his wife, and that he for that reason gives her claim a priority. But no other person has any claim upon the trust fund during the life of the wife, unless by implication or inference from this and other expressions in the will, the other beneficiaries of the trust are to have the income of the fund; and if they are to have the income, the fact that they are to have it favors, if it does not necessitate, the construction that they take vested interests in the fund previous to the division.
Again, in the provision for dividing and trusteeing the residue, the testator uses the expression, "that part of it which may belong to his daughters," as if he recognized an ownership in them. The indication, however, is slight and equivocal, for he is speaking with reference to the time of division, when they would become owners, if they were not such already.
If we look beyond the twelfth clause to other parts of the will, we find nothing to favor the supposition that the testator *Page 76 intended to exclude the persons designated to take under the twelfth clause from any benefit from the bounty there bestowed until such time after the death of his wife as the trustee might choose to divide it, or to make their right of property in it dependent upon their surviving that time. On the contrary, it does appear, that after his wife, they were the principal objects of his testamentary beneficence, and, they being of age and some of them quite advanced in years, he had no reason except the security of his wife for delaying the time when they should reap the benefit of it. The thirteenth clause gives to executors and trustees power to sell and reinvest the property, but not without "the assent of the party enjoying the income thereof." This language should be considered in connection with the opening direction of the twelfth clause to which we have just referred. The will contains no traces of a wish to aggrandize a property which was already ample, by mere accumulation, until the division; and the inference is easily drawn that the testator supposed that the income, instead of accumulating, would be enjoyed by the objects of his bounty. Indeed, he probably had the idea that a trust ordinarily means an arrangement by which the trustee safely keeps the corpus of the property, while the beneficiaries enjoy its income.
The conclusion to which we are led by the authorities to which we have referred, and by our own reasoning upon the will, is, that the fact that the division of the property devised and bequeathed by the twelfth clause is delayed until after the death of the widow, is not a fact from which we are to infer that the devise or bequest was intended to be contingent until her death.
2. The twelfth clause directs that the division, when made, shall be made among the children of the trustee or their legal heirs, c., "if any of them be dead when this bequest takes effect." An important question to determine is, what time is signified by the words "when this bequest takes effect." Does it mean when the widow dies, and when the division shall be made? If so, until then the persons designated cannot be known and their interests cannot vest, or not indefeasibly at least. The obvious answer to the question is, that the bequest takes effect when the will takes effect. But is this what the testator meant? We are not entirely sure; but we find nothing in the words or *Page 77 their context to convince us that he did not mean this; and we must therefore take the obvious meaning of the words as the meaning in which the testator employed them. This view relieves the bequest of any uncertainty in regard to the persons who are to have the benefit of it, in so far as any uncertainty arises from the words under review, and, inasmuch as the persons can be ascertained at the death of the testator, is entirely consistent with their taking vested interests. Indeed it favors that construction.
3. Another feature of the twelfth clause which we have reserved for special consideration is the power which is given to the trustee, in making the division, to trustee all or any part of the property when divided. In view of this power can we construe the beneficial interests as vested?
We have spoken of the power as a discretion, and in so far as it relates to the shares of the sons it is clearly a discretion. The words first used are, "to trustee all or any part of the property so divided among his eight children or their heirs-at-law," c. A trust to trustee all or any part of the property is purely discretionary, for, as is urged by counsel, a power to trustee any part may be satisfied by its exercise upon an infinitesimal part, and, consequently, by not being exercised at all. Bailey v. Burges, 10 R.I. 422. But the words first used are followed by words relating to the shares of the daughters, which have the appearance of being more mandatory in their signification. We refer to the words, "and that part of it which may belong to the daughters, married or single, to be sotrusteed as that the income thereof shall be paid to them or either of them, on their own receipt," c. Are these words to be construed as an imperative direction, restrictive of the broad discretion to trustee all or any part of the property previously conferred in the same sentence, which makes it the trustee's duty in making the division to trustee the shares of the daughters, or are they rather to be construed as words which simply point out the manner in which the trustee, in case he thinks proper to trustee the shares of the daughters, shall exercise that discretion. We prefer the latter construction as more consistent, on the whole, both with the structure of the sentence and with the direct and clear language in which the power is conferred. It may also be noted that the *Page 78 words are, "to be so trusteed as that the income thereof shall be paid to them or either of them," as if it were in the mind of the testator that the trustee would be at liberty to trustee the share of one of the daughters and not that of the other, in the exercise of his discretion. The giving of so large a discretion need occasion no surprise when it is remembered that the donee is the father of the beneficiaries, and consequently can have no motive to use it otherwise than for their good. An option to divide or hold in trust is clearly given him in the fourth clause.
Is the vesting of the beneficial interests given by the twelfth clause compatible with the existence of such a power or discretion on the part of the trustee? We think it is. The rights of the beneficiaries are designed to exist independently of the exercise of the discretion, subject only to modification in the event of its exercise. The power or discretion is in the nature of a condition subsequent. It does not prevent the beneficial estates from vesting; it only subjects them to a liability to be divested to a certain extent in case it is exercised.
The result, then, to which we are led, or rather to which we have painfully groped our way, is, that the beneficial interests given by the twelfth clause vested immediately upon the death of the testator in the children of his brother Daniel then living, and in the heirs-at-law, so called, through the brother's blood of the child then deceased. This is a result which may, indeed, in some of its consequences, disappoint the wishes of the testator; but it is the result which best accords with the purpose which certain intimations of the will lead us to think he entertained, that the children of his brother and their heirs-at-law, so called, through the brother's blood, should have an immediate claim, subject to the prior contingent claim of his wife upon the residuary estate.
Then regarding the equitable interests as vested, the question recurs, Is there anything to prevent an immediate division of the property devised? In considering this question it is to be borne in mind: first, that the testator's widow, for whose security the division was apparently delayed, consents to an immediate division, the security being superfluous or otherwise provided for; second, that the beneficiaries desire and ask for an immediate division; and, third, that Daniel Rogers, the trustee, wishes to *Page 79 make the division without further delay, if it can be made consistently with his duty. In these circumstances, it seems to be entirely unnecessary to prolong the trust, unless the trustee wishes to create the new trusts which he has the discretionary power to create upon making the division after the decease of Mrs. Rogers. But the trustee, through his counsel, states that he does not wish any delay for that purpose, and prefers to relinquish this power rather than delay the division for the sake of exercising it. This we think he may do, the power being personal to himself, or, if possibly it may continue beyond himself, extending at the utmost only to successors of his own appointment, and whom he may appoint or not at his pleasure. We are therefore of the opinion that the trustee may properly divest himself of his trust, and of all the powers which he has as trustee under the will, by making an immediate division of the trust property; and that we may properly enter a decree directing — or rather let us say, inasmuch as we might hesitate to direct a division if any party in interest were opposed to it — a decree giving the sanction of the court to such a division.
There are some incidental questions to be decided before the property can be divided, upon which the trustee desires the instruction or decision of the court.
It appears that James S. Rogers, one of the eight children of Daniel Rogers who were living when the will was made, died in the lifetime of the testator, unmarried, childless, and intestate. It is claimed that the share of the residue, which would have gone to him if he had survived has lapsed, and must be disposed of as intestate estate. We do not so construe the will. The devise is to Daniel Rogers in trust, to divide the residue "equally between his eight children now living or their legal heirs, per stirpes and not per capita, if any of them be dead when this bequest takes effect, and to trustee all or any part of the property so divided among his eight children or their heirs-at-law through his blood." Manifestly, if we ascribe to the words "when this bequest takes effect," the meaning which we have ascribed to them, the testator has not overlooked the possibility of the death of one or more of the eight children in his lifetime, and has, in his own belief at least, designated who shall take by substitution for them. And see Finlason v. Tatlock, L.R. 9 Eq. 258. The persons to take *Page 80 by substitution are the heirs-at-law of the deceased through the blood of Daniel Rogers, and they are to take per stirpes and not per capita. But, it is said, the father of James S. Rogers is his sole heir-at-law, and he is excluded from taking because the gift is to the heirs-at-law, through the blood of Daniel Rogers, per stirpes and not per capita, a description which is not appropriate to Daniel Rogers himself. We agree that the description is inappropriate to Daniel Rogers. The will also, which very clearly manifests a design to avoid intestacy, affords no express indication of intent to benefit Daniel Rogers, who is himself an affluent and aged man. The general structure of the twelfth clause is likewise rather against the existence of such an intent. It appoints Daniel Rogers to hold the property for others and divide it among them, rather than to participate in it himself. We do not, however, agree that the effect of this view is to avoid the substitutional gift. The result, in our opinion, is, that the heirship of Daniel Rogers is to be disregarded, and the substitutional gift is to be construed as a gift to those who would be the heirs-at-law of James S. Rogers through the blood of his father, if his father were individually disentitled to heirship. Under this construction the seven children who survived the testator became entitled to the entire residue. It is true, we disregard by this construction the technical meaning of the words "heirs-at-law;" but in so doing, we do what other courts have done, — look through the words for the meaning which is behind them. Doody v. Higgens, 2 Kay J. 729; In rePorter's Trust, 4 Kay J. 188; Gittings v. McDermott, 2 M. K. 69; In re Steevens's Trusts, L.R. 15 Eq. 110. It is also true that under this construction no effect is given to the words, per stirpes and not per capita; but this is not through any fault of the construction, but because the words are inapplicable in the contingency which has happened. If, besides James S. Rogers, a brother or sister had died in the lifetime of the testator, leaving several children, then, under precisely the same construction, the words would have their just effect upon the substitutional gift.
Four of the beneficiaries, sons of Daniel Rogers, are of full age and competent to transact business. The trustee, of course, will have no difficulty in assigning to them their respective shares and in receiving from them the proper discharges. A fifth beneficiary, *Page 81 a son of Daniel Rogers, also of full age, is non compos mentis. He has as yet no guardian of his person and estate. Such a guardian should be immediately appointed to have the care and custody of the share set off to him. A sixth beneficiary, Maria Williams, who survived the testator, is now deceased, leaving a husband and a minor daughter. Her share, having vested in her on the death of the testator, passed, on her decease, the real estate to her heirs, subject to the curtesy of her husband, and the personal estate to her legal representative, to be administered and distributed according to the law of the state of New York, the state of her domicil. Her personal representative is Jonas Williams. He is a party to the suit, though not described as her representative in the suit. Her share of the personal property should be transferred to him, unless he consents to have it transferred directly to the distributees. The seventh beneficiary is Anna R. Case, the wife of Augustus L. Case. She is entitled to have her share of the real estate transferred to her. She is entitled to have her share of the personal property, or a portion of it, settled to her separate use if she so desires. Her wish should be ascertained. If she wishes no settlement it should be transferred to her directly.
In making the division, the trustee will, of course, make proper deductions for advances, so that none of the beneficiaries shall by reason thereof have any advantage over the others.
We have now passed upon all the questions arising upon the twelfth clause which we deem it necessary to decide for the instruction of the trustee. Other questions are made upon other provisions of the will, but there is no exigency requiring their immediate decision. When such an exigency does arise, it will be time enough for us to decide them.
Decree accordingly. *Page 82