Walker v. Whiting

Wilde J.

afterward drew up the opinion of the Court. The only question arising on the bill and answer depends on the construction to be given to the last will and testament of Charles Walker, by which he gave and bequeathed to his wife, the present plaintiff, among other things, an annuity of $ 1000, to commence at his decease, and to be paid to her quarterly during her life, by the defendant, whom he appointed executor and trustee for the purposes mentioned in his will.

The defendant, in his answer, avers that the whole personal estate is necessary for the payment of the testator’s just debts ; wh’cl the plaintiff does not controvert; so that unless by the will the real estate was devised to the defendant in trust, there is no trust fund in his hands, from which the instalments demanded can be paid. There is no express devise of the real estate to the trustee, and the only question is whether he took an estate in trust by implication of law.

The rule of construction in this respect is, that a devise may be implied, if such appears to have been the intention of the testator, if that may be done consistently with the rules of law.

The intention of the testator is to be collected from the whole will, and if it appears that the will cannot be carried into effect without implying a devise, it will be implied by law. But the intention must be clear, and the implication necessary, according to the language and import of the will. A doubtful intention is not sufficient.

These rules of construction are reasonable, and are well established by the cases cited. 13 Hen. 7. 17. 22 ; Gardner v. Sheldon, Vaughan, 263 ; Oates v. Cooke, 3 Burr. 1684; Willis v. Lucas, 1 P. Wms. 472 ; Aspinall v. Petvin, 1 Sim. & Stu. 550 ; Trent v. Hanning, 7 East, 97 ; Bush v. Allen, 5 Mod. 63; South v. Allen, ibid. 98; Com. Dig. Estates by Devise, N12.

We are then to consider, whether a devise of the real estate to the trustee, must be implied, in order to effectuate the intention of the testator, as manifested by the various provisions of his will; and we are of opinion that such an implication is necessary.

It was manifestly the intention of the testator to make a suitable provision for his wife in the first place, to be secured to her at all events, unless she should marry, and in such case the annuity was to be continued, provided the husband should give bond to each of his children who might be then living, and under age, with sureties to the satisfaction of the trustee, conditioned for their support and education, as the wife should direct, agreeably to the provisions of the will; and if such bond should be given, or if the condition of the bond should not be performed, said trustee was to appropriate so much of the funds in his hands as he should judge proper for the support and education of the children agreeably to the provisions of his will. In a prior, clause of the will the testator declai es, that “ the purposes, for which said annuity is given to my said wife, are to enable her to live comfortably and in easy circumstances, without dependence on any one, and to enable her to support and educate her said children in such manner as, in her judgment, will best insure their happiness. And if, in any one year, the said annuity, in the judgment of said trustee, shall be insufficient for those purposes, he shall pay her an ad ditional sum, not exceeding $ 1000, for that year.” These clauses in the will show very clearly, how important the testator considered the provisions for his wife to be, not only for her comfort, but for the comfort, education, and happiness of his children. And he must be presumed to have known the value of his personal property and the amount of his debts ; at least'nearly, so as to know that the provision for his wife could not be carried into effect without recourse to his real estate. We must, therefore, infer that he intended to charge his whole estate, real and personal, in the hands of the trustee, for the security of his wife.

It was argued for the defendant, that there might be a charge on the estate without implying any estate in the trustee. But most certainly this was not the intention of the testator. He intended that his will should be executed and his estate distributed by the trustee. He was to pay the annuity to the plaintiff, and by one of the clauses above referred to, if, in any one year, the said annuity, in his judgment, should be insufficient for the purposes for which it was given, he was to pay her an additional sum, not exceeding $ 1000. And by another clause in the will he was authorized, with the advice and consent of the plaintiff, to pay to either of the children a part of her share, not exceeding $ 1000, if she should marry under age. These provisions show very clearly, that the testator intended that the trustee should have the control and distribution of his estate, real as well as personal. He could not be so ignorant of the value of his personal property as to suppose, that it would be sufficient to enable the trustee to discharge his various trusts, after the payment of his debts ; which, as it has proved, were sufficient to absorb the whole personal estate, so that the trusts cannot be executed, unless the legal title in the real estate passed to the trustee.

It was objected in the argument, that there was an express devise to the testator’s children, which rebutted the devise by implication to the trustee. But this devise was evidently intended to be subject to the trust. It was a devise of the remainder of the estate, after paying all just claims thereon ; and if all the children should die under age and without issue, then all the estate given to the children, and “ with which the trustee should be then chargeable,” was given to the plaintiff, if then living, otherwise to the heirs at law of the last surviving child. The language of this clause of the will shows very clearly, that the devise to the children was subject to the trusts, and was not to take effect until after the trusts were fully executed. We are therefore of opinion, that the intention of the testator to give to the trustee the whole of his estate, for the purposes of the trust created by his will, is plainly manifested by the clauses referred to; and consequently, that the legal title to the real estate passed to the trustee by necessary implication.

Decree in favor of the plaintiff.