(dissenting).
It is necessary to understand the nature of this action in order to consider the nature of the issues involved. The complaint alleges that the estate was duly administered, and a final decree was made and entered in the probate court on November 4, 1895, and the action is brought by the executors in their capacity as trustees under the fourth clause of the will, calling upon the court to declare and adjudge that it is the right and duty of such trustees to sell any part of the property included in the trust, and to apply the proceeds thereof, so far as may be necessary, to produce the annual sum of $8,000; it being alleged that the income from the securities composing the trust fund amounts to less than $6,000 per annum. The intervenor resists the demand as a creditor of one of the sons. The court found that the annual revenue arising from the trust fund at the time of the trial did not exceed the sum of $4,950, but held, as a conclusion of law, that under the provisions of the will the trustees had no power to charge or consume the body of the estate so set apart for the trust for such purpose. Assignments of error addressed to this holding require a construction of the will by this court.
*266A brief analysis of the will is essential to an understanding of its terms. The testator was a successful and prominent business man, a resident of the city of St. Paul, and his purpose was to divide his estate principally among the members of his immediate family, which consisted of his son Ex-Gov. W. R. Merriam, three other sons, and one daughter, and his wife, their mother. The will bears date November 9, 1885, and the testator died January 12, 1895, no change having been made in its provisions. It contains three separate trusts, — one for the benefit of a sister and a Miss Watson, one for the benefit of his married daughter and sons, and the one in reference to the wife. Each of these separate trust provisions is peculiar to itself, showing a studied design as to each. The one in favor of the sister and Miss Watson is a bequest to the executors, as trustees, of such an amount of interest-bearing securities as will produce a net annual income of $700; there being no fund set apart by the testator to be invested, the income from which shall be paid, $600 to the sister, and $100 to Miss Watson, for life, — the fund to revert to the estate upon their decease, and be distributed according to the succeeding provisions of the will.
After providing for certain specific bequests for charitable purposes, and a special gift to his son W. R., and after declaring the trust for the wife, the testator bequeathed the residue of his estate to his wife, his son W. R., and A. EL Wilder, as trustees, in trust for certain definite purposes, viz.: The necessary amount to maintain and educate his two minor sons, Robert and A. W., until their majority; as soon as each of his sons John, Robert, and A. W. shall attain the age of 28 years, to pay over to him an equal one-fourth part of the estate then remaining in their hands; to advance to these sons such amounts of their prospective share as the trustees may think advisable; the other one-fourth part to remain in the hands of the trustees during the natural life of his daughter, Mrs. Howell, with power in the trustees, in their discretion, to provide for her comfortable maintenance out of the income of such fourth part, and with the power, also, to pay to her such portions of such principal as may seem to them for her best interests, with a provision that the balance of such part not used for the benefit of the daughter shall go to the sons John, Robert, and A. W. at her death. *267The will contains bequests of a special nature to his son W. R. of a one-fifth part of his real estate and personal property, subject to the other legacies, and special mention is made of certain advances having been made to him.
The testator makes special provisions for his wife as follows: All the household furniture, silverware, carriages, and horses used at the time of his decease, and all other household property in and about her homestead, and any stable building and fixtures he may own and use in connection with her homestead; also all moneys which may accrue to the estate from the Masonic Relief Association; also one-third of all of his real estate. The fourth clause of the will, which provides for the trust fund in question, is set out in the opinion, with the exception of the following, which is an important part thereof, viz.: 1
“My said wife shall exercise and make known her choice and option in the premises within ninety days after her said one-third part of said real estate has been set apart and conveyed to her, and written notice of such conveyance given to her.”
It appears from the will that the wife owned the family homestead, thus possessing valuable property in her own right. The only terms of endearment employed are “my beloved wife,” which occur twice, and they are the usual and ordinary words used in such instruments. The wife, his son W. R., and a prominent business man of St. Paul were appointed executors, and four other well-known business men of St. Paul were named as successors should vacancies occur.
A study of the various provisions of this will, and of the instrument as a whole, reveals a carefully arranged plan. There are many things considered. A sister, and probably a dependent relative; certain charities had claims which must not be omitted; his wife, his daughter, the favored son, his minor children. With what elaborate and painstaking care are the necessities and the natural characteristics of the family studied and provided for. And who so well knew their peculiarities, and understood the need of a free or restraining hand, as this father of the household. The will is complete and harmonious throughout. All its parts are consistent, each provision bearing a studied relation to the whole. To *268permit the general estate, so far as not distributed, or the trust fund itself, to be invaded, as the decision declares, destroys the equality of distribution as arranged among the different members of his family, and in effect makes a new will.
Taking up the trust provisions of the fourth clause, we find it to consist of the following distinct features: (1) A bequest to his wife of one-third of all of his real estate. (2) The executors were to set apart interest or dividend-bearing securities sufficient to produce the net amount annually of $8,000, which trust fund was to be used in either of two ways, according to his wife’s option. (3) There is an express wish and desire that she deed a one-fifth interest of her real estate to her son W. R. (4) In case she does so deed the one-fifth part to W. R., she is to receive the annuity. (5) If she elect to make the exchange, and receive the annuity, then upon her death those securities to go to the residue of the estate as disposed of under other provisions of the will. (6) She must exercise the option to make the exchange within ninety days after notice that her one-third of the real estate has been conveyed to her. (7) If she does not exercise the option, but retains the real estate, then the executors are to deliver to the son W. R. so much of such securities so set apart as shall be equal to the cash value of the said one-fifth of one-third of her real estate. (8) The balance of such securities remaining in their hands the trustees shall hold and pay the income thereof to the wife during her natural life.
It will be noticed that the trust fund is directed to be set apart as an independent act. The widow was required to deal with it as it was after so set apart. The form in which the bequest is made cannot matter. The entire provision must be considered, and, so considering it, this trust-fund provision is as definite and certain as any lawyer could state it. Having in mind that it might be of advantage for his wife to exchange a portion of her real estate for the other class of property, he arranges a scheme to enable her to do it. There was nothing compulsory about it. She could have the income from the securities, or she could retain the real estate. This fund, sufficient to produce an annual income of $8,000, was to be selected by the trustees whether the widow made the exchange or not. If she did not exercise the option, to the extent of the *269value of the real estate, securities were to go to W. R. Before she could pass upon the expediency of making the exchange, the securities had to be selected, and she was required to exercise her judgment as to which she would take, — the real estate or the income from the fund so selected. There is not a word intimating that this fund could at some future time be reinforced from the body of the estate. “I give and bequeath unto my said wife an annual allowance of the sum of $8,000,” not out of his estate, but which “shall be provided for in the manner following.” Having carefully prepared this trust fund to go to the benefit of the wife, or to her and the son, as she should choose, and having provided that the securities should revert to the estate for the benefit of his other children upon the decease of his wife, it seems inconceivable that the testator intended that the trust-fund securities should be sacrificed if the income therefrom should temporarily fall below $8,000. The demand of the trustees in this proceeding is to be empowered to dispose of the securities composing the trust fund to make up the deficiency. They make no demands upon the general estate, although the opinion proceeds upon that assumption.
Is it possible to gather from this instrument the intent that the very object in providing an annual income should be defeated by the destruction of the fund itself? This, indeed, would be killing the goose which lays the golden egg. When the author of this bequest was working it into shape, he took into consideration the probable variation in the value of his real estate, and of the securities, and for that reason placed stress upon the fact that the trustee should select enough to produce that amount annually. But no wish expressed in the will is more certain than that such selection should be final. No thought was further from the mind of the man who arranged the provisions of this trust than the granting of power to eat up the substance during á reverse in values.
It is perhaps true, as stated in the opinion, that each particular case must rest upon its own particular facts, and that such aid as the authorities can give is of value only by way of illustration. However, seven cases are selected which it is claimed establish certain rules of construction supporting the views of the court. Let us examine these cases.
*270In Additon v. Smith, 83 Me. 551, 22 Atl. 470, the annuities were general legacies, — an absolute gift of a definite quantity out of the estate. In Moore v. Alden, 80 Me. 301, 14 Atl. 199, the annuity is as follows:
“I also give and grant to my said wife during her life the annuity and sum yearly of one thousand dollars to be paid from the earnings of my individual and partnership property; which devise, bequests, and annuity are intended to be in lieu of all allowance, dower, and distributive share of my estate.”
No fund was provided, and there were no limitations except as to earnings. The court held that it was not the intention of the testator to limit the annuity by the actual earnings of the estate, because, the annuity having been granted in lieu of dower, it should not be limited by the earnings, unless a contrary intention appeared from the other parts of the will. The testator having no children, the court held that a liberal construction should prevail in the wife’s favor as against the other legatees. In the case before us the question of dower rights does not arise. She is already given her one-third. The plan simply provides for an exchange by herself of a part of that dower property for an income from personal property, if as made up it suited her.
In Smith v. Fellows, 131 Mass. 20, the annuity to the wife was as follows: “One thousand dollars per year during her lifetime, the same to be paid from the income of my property.” The opinion reads:
“It is the gift of a fixed sum, which is to be paid annually, and which is not made contingent or dependent upon the income of any specific portion of his property. There is no particular fund set apart for its payment. The income of the whole estate is charged, and the residue bequeathed to a daughter is described as that which remains after the payment of debts and expenses, and the payment of the legacies mentioned in the wall. In view of all these provisions, the fact that the phrase ‘to be paid from the income of my property,’ is added to the bequest does not show a clear intention to make this legacy specific. It is rather the expression of a wish that the payment should be made from the income in case the same should be sufficient.”
It will be noticed that the court draws particular attention to *271the fact that no separate fund is set apart, and that the whole estate is charged with the income.
In Boomhower v. Babbitt, 67 Vt. 827, 31 Atl. 838, the annuity of $360 was “to be paid to her, and for her, from time to time, during each year, as may be needed and required, and to be paid by my executors; and to the end that the payments * * * may be effectually secured, and the same duly paid, it is my will that $11,000 of my estate shall not be received and divided until the said annuities or yearly payments be completed and cease to become due.” Following this is a direction to the executors to invest the $11,000 to draw interest for the benefit of the annuity. Then follows a further direction that, if the annuity is not sufficient to furnish the donee a suitable and comfortable support, to take from the fund of $11,000 the amount necessary for that purpose. The court held that if the income from the fund was insufficient the amount should be made up from the estate. In what possible way is that case an authority here? There is an express direction to take enough from the fund to carry out the purpose of the annuity.
In Pierrepont v. Edwards, 25 N. Y. 128, it was stated that the annuity should be paid out of the income from the entire estate. The court held, that being insufficient, the estate might be resorted to upon the principle applied in Moore v. Alden, supra. In Morriss v. Garland, 78 Va. 215, the executors were directed to set apart $50,000 worth, at par value, of bank and other paying stocks and bonds paying at least six per cent, per annum, the proceeds to be paid to the wife. There was no limitation as to time or fund, and it was held to be a so-called “demonstrative” legacy, not limited to the securities set aside by the executors. Merritt v. Merritt, 43 N. J. Eq. 11, 10 Atl. 835, has no application; and in Morriss v. Garland, supra, the widow renounced the will, and the question was not squarely before the court.
In all of these cases no such provisions are found as are here presented. The facts are radically different. They establish, however, one principle, and that is this: The only office of the courts is to find out what the testator meant by his will, and by no means to make a new will. While these decisions are of value by way of comparison, and are an interesting part of the judicial history of *272this subject, there are many others presenting a different view, notabiy Baker v. Baker, 6 H. L. Cas. 615; Addecott v. Addecott, 29 Beav. 460; Sheppard v. Sheppard, 82 Beav. 194; Booth v. Coulton, L. R. 5 Ch. App. 684; Forbes v. Richardson, 11 Hare, 354; Taylor v. Taylor, L. R. 17 Eq. Cas. 324; Irwin v. Wollpert, 128 Ill. 527, 21 N. E. 501; De Haven v. Sherman, 131 Ill. 115, 22 N. E. 711; Delaney v. Van Aulen, 84 N. Y. 16; Nudd v. Powers, 136 Mass. 273. In my opinion, the will should be held intact against the proposed encroachment upon either the principal of the trust fund or the undistributed balance of the general estate. The judgment should be affirmed.