Minot v. Taylor

Morton, J.

The will of William Taylor is somewhat confused in expression, but the general purpose and scheme of the testator is clearly apparent. He intended to divide the residue of his estate, after paying certain legacies, into four equal parts, one fourth part to go to the benefit of each of his three children who survived him and their issue respectively, and one fourth part to the children of his deceased son Henry and their issue. He gives an equitable life estate in one fourth part to each of his surviving sons with a limitation over to his issue, a life estate to the children of his deceased son Henry with a like limitation over to their issue, and a life estate to his daughter Sarah with a limitation of a life estate to her children and a further limitation over to her grandchildren. He then proceeds to make provision for the case of either of his surviving children dying without issue, in the following words : “ And if either óf my said children shall die without children or grandchildren, I direct the share of income of such child or children so dying without children' or grandchildren to be paid to my surviving child or children and to the children of my said son Henry (excepting however the provision hereinbefore made for the wife of my son William) in the manner above provided during the natural life or lives of such surviving child or children and grandchildren. It is my intention that my grandchildren shall take by representation, and on the failure of issue of either of my children the share of such child dying without issue shall vest in the issue of my surviving children and the issue of my said son Henry, and be paid whenever the same is distributable agreeably to the provisions of this will.”

The first question in the case is as to the construction of this clause. The testator’s son William and his wife have died without issue. Béfore the death of William, the testator’s son John and his daughter Sarah had died each leaving issue; and the children of Henry contend that they are entitled to the whole of the income of the share of William, to the exclusion of the issue of John and Sarah. We are not able to adopt this construction. The phraseology is confused and obscure, but it seems to us that, upon reading the whole will, the intention appears that, in the contingency which has happened, the income of William’s portion should be divided into three parts, one part of which is payable to the issue of each of the testator’s three children who left issue. This construction alone is consistent with the main purpose of the testator, an equality of division between the different branches of his family. We think that the testator intended to use the words “ surviving child or children ” to designate children surviving at his death, and that the declaration of his intention that grandchildren should take by representation, and that the share of a child dying without issue should vest in the issue of surviving children and the issue of his son Henry, was intended to qualify and explain the previous provision, that the share of income of a child dying without issue should be paid “ to my surviving child or children and to the children of my son Henry.” The words “it is my intention that my grandchildren shall take by representation” seem to refer to all his grandchildren, and unless they qualify the previous provision they are useless and without force.

We are of opinion that the clause in question gives to the children of each of the testator’s deceased children a share of the income of the portion held for William, to be paid to them until the principal is distributable according to the provisions of the will.

The other question raised by the report, whether the limitation over to the grandchildren of Sarah as they attain the age of twenty-one years is void for remoteness, is premature, and cannot properly be considered in this suit. It may involve the rights of persons not now in being, and does not affect the present duty of the trustees. The limitation of a life estate to the children of Sarah is a valid limitation, as it vested in her child William T. Kennedy at the death of Sarah, and it is the duty of the trustee to pay the income of her share to him during his life. The trustee has the right to ask the instruction of the court as to his present duties, but not as to what may be his duty in future uncertain contingencies. Decree accordingly.