
    John Annin’s executors vs. Lenah Vandoren’s administrator and others.
    A testator, by his will, bequeathed to Ms four daughters, A. L., E. A., L. V., and M. V., the residue of the proceeds of the sale of certain real estate and all his rights and credits (after payment of his debts and expenses) to them and their heirs, share and share alike, to be paid as soon as the estate could conveniently be settled.
    He also directed his executors to sell another farm after the death of his son John, and the proceeds of the sale he gave and devised to Ms four daughters and to the children of 1ns son John, equally to them and their heirs.
    By a subsequent clause,die directed as follows : “ Should my daughters Lenah and Mary, or either of them, die leaving no legal issue, the share or shares heroin bequeathed to her or them (if not paid over by my executors, and if paid over then such part thereof as remains unexpended,) I give and bequeath unto my surviving children and their heirs equally between them.”
    Lenah, one of the daughters, having received her share of the funds from her father’s executors, died without issue, leaving a part of her share unexpended in the hands of her agent.
    On a bill filed by the executors of the testator to determine the true construction of the bequests to Lenah, it was held—
    That the bequest over after the death of Lenah without, issue was void, being inconsistent with the absolute power of disposition conferred upon the legatee.
    It seems clearly settled that a right in tlie legatee or devisee to dispose of the estate given or devised at Ms pleasure, and not a mere power of specifying who may take, amounts to an absolute gift — anda devise over in such a case is inoperative.
    The power of expenditure conferred by the bequest in this case is equivalent in principle to an absolute power of disposition; the unlimited power of expenditure involves the idea of absolute ownership.
    The executors of the testator were justified in paying over the money to Lenah without security, and they would have been justified in so doing even if the limitation over had been declared valid.
    This bill was properly filed by the present complainants, who are the executors of the surviving executor of the testator, and are therefore the executors of the will of testator. It was not necessary, however, that the bill should have been filed by the complainants ; it might with propriety have been filed by those claiming the fund under the limitation over.
    Whenever the gift over is valid, equity treats the gift, direction, or recommendation as creating a trust in favor of those to whom the gift is made ; and the cases in equity have frequently arisen upon bills filed by the cestui que trusts for the recovery of the property.
    Answers having been filed in this case by the administrator of Lenah, and also by a party claiming to be her executor under an instrument executed as a will by her, and alleged to have been improvidently destroyed, and which the defendant asks to have established by this court as the last will of Lenah, it was held—
    That such a question cannot be determined in this suit. Letters of administration have been duly granted on the estate of Lenah, and the administrator is before the court. For the purposes of this suit, his title as administorator must be recognized. If the will is to be established, it must be by a bill duly exhibited for that purpose. Until that is done, the title of the party claiming to be executor cannot be admitted.
    As a general rule, when executors come into court to settle the true construction of the will, or for direction as to their duty, they are entitled to costs out of the estate. In this case the complainants have no estate of their testator in their hands, nor is the fund in dispute under the control of the court, but has been paid over to the legatee to whom it belonged. These costs cannot be charged upon that fund. The bill dismissed without costs by either party as against the other.
    This bill is filed by William Annin and Peter D. Vroom, executors of John Annin, deceased, who was the surviving executor of Jacob Vandoren, deceased, against the administrator of Lenah Vandoren, the administratrix of John Vandoren, and John M. Wyclcoff, who was the agent and attorney in fact for Lenah Vandoren, under the following circumstances:
    
      Jacob Vandoren, the testator, by his last will, dated September 12th, 1810, and which was admitted to probate on the 21st of September, 1811, gave to his daughters, Lenah and Mary, certain articles of furniture. He also gave the residue of the proceeds of the sale of certain real estate, including all his rights and credits after the payment of all just debts and expenses, unto his four daughters, Auley Logan, Elizabeth Annin, Lenah Vandoren, and Mary Vandoren, to them and their heirs, share and share alike, to be paid as soon as the estate could conveniently be settled. The executors were also directed to take charge of and lease a farm, called the "Compton farm, ” during the life of the testator’s son John, and on his death the farm was to be sold by the executors ; and the proceeds of the sale he gave and devised to his four daughters (above named) and to the children of his son John, equally to them and their heirs.
    By a subsequent clause of the will, the testator directed as follows :
    "Should my daughters Lenah and Mary, or either of them, die leaving no legal issue, the share or shares herein bequeathed to her or them (if not paid over by my executors, and if paid over, then such part thereof as remains unexpended), I give and bequeath unto my surviving children and their heirs equally between them.”
    The executors of testator paid over to Lenah her share of the estate. She died in June, 1859, unmarried, leaving a part of her share unexpended in the hands of John M. Wvekoff, her agent and attorney in fact, amounting to about $1250.
    The complainants filed their bill to ascertain and determine the true construction of the will, and the prayer of their bill was, among other tilings, that John M. Wyckoff account for all moneys and securities that were in his hands as agent of Lonah, and that the balance in his hands might be decreed to be paid over to complainants ; that just and reasonable commissions might be allowed them for the performance of their duties as executors ; or if in the opinion of the court that it did not rightfully belong to the complainants to receive and administer the fund, that they be discharged from all responsibility and from all further duty and trust in relation thereto, and for further relief.
    The administratrix of John Vandoren answered the bill, claiming that by the words “surviving children,” in the clause last quoted, the testator meant children surviving at his death, and not at the death of the daughters, and therefore that if the limitation over was good his estate was entitled to a share of the unexpended fund.
    The administrator of Lenah Vandoren filed an answer claiming that the limitation over was void, and that the legacy was an absolute gift to her.
    John M. Wyclcoff also answered the bill, claiming that the limitation over on the death of Lenah was inoperative, and that the fund vested absolutely in her; that she left will, dated in 1853, of which he was the sole executor; that the will had been improvidently destroyed. He prayed that the will might be established, and that the fund be decreed to belong to him, as executor of Lenah.
    The material facts were all admitted by the pleadings.
    
      Vroom, for complainants.
    The limitation over is good. It is to go over if the daughters die leaving no issue. This imports a definite failure of issue. The terms used would not create an estate tail. It is in the nature of an executory devise.
    But it is claimed that the bequest over is void, because the legatee had a power of disposition of the money.
    It is true that, where there is an absolute power of disposition, the limitation over is held to be inconsistent with the exercise of such power, and therefore fails, although it defeats the manifest intention of the testator. 4 Kent's Com. 264.
    If, however, the power is not absolute, the courts follow the meaning of the will Doe v. Howland, 8 Cow. 284.
    A power of devise does not make the estate absolute — and refers to late English cases cited in 2 Williams on Executors 
      
      1140; Green v. Hartley, 1 Hare 428; Armstrong v. Kent, 1 Zab. 509; 2 Halst. Ch. 637; Boyd v. Bingham, 4 Barr 102.
    The words “remaining unexpended” are different from remaining undisposed of. It is equivalent to saying that Lenah might expend the interest, and so much of the principle as might be necessary. Expenditure does not mean giving away. The testator’s intention is very clear, and is consistent with the rules of law.
    ' Counsel also referred to the opinion of Justice Exedenburgh in the case of the Executors of Hendrick Field v. John V. D. Stout, decided at Somerset Orphans Court at December term, 1860. In this case a fortune was left to testator’s daughter, and ‘ when she had done with the world’ ’ it was given over. The limitation over was held good.
    That it is the duty of the executors of the surviving executor to settle the account of this fund. 2 Williams on Executors 1258-9, and cases cited.
    
      J. V. Voorhees, for administrator of Lenah Vandoren.
    We claim that Lenah took an absolute interest in the legacy. If she had power to expend it, the gift was absolute. How is the property to be identified ? This balance in the hands of Wyckoff may be interest instead of principal. How can the court determine that? 1 Jarman 792, note No. 2.
    
      H. M. Gaston, for administratrix of John Vandoren, declined argument.
    
      Leupp, for J. M. Wyckoff.
    1. The obvious design was to give Lenah an absolute interest in the fund. The subject matter of the fund is personalty or proceeds of real estate given as personalty.
    The leaning of courts in regard to personalty has been to hold the limitation over on a definite failure of issue. Firth v. Chapman, 1 P. Wms. 664; Nix. Dig. 917, § 17.
    If the jus disponendi had been annexed to the original clause it would have been clearly absolute. It implies a clear power of disposition, as well of the principal as of tbe interest.
    The power of expenditure involves the power of consumption. When a thing is expended it is gone. It is not limited to a necessary expenditure, as suggested by complainants’ counsel; such a power is inconsistent with the limitation over.
    2. The court has power in this case to establish the will of Lenah. Bailey v. Stiles, 1 Green’s Ch. 221.
    The fund is small, and all the questions can as well be settled in this cause as to turn the party round to a new suit.
   The Chancellor.

The bill is filed by the executors of John Annin, deceased, who was surviving executor of Jacob Vandoren, deceased, to ascertain and determine the true construction of certain bequests made by the said Jacob Vandoren to his daughter, Lenah Vandoren.

By the second clause of bis will, the testator gave to bis daughters, Lenah (by the name of Lane) and Mary, certain articles of household and kitchen furniture.

The residue of the proceeds of the sale of certain real estate, including all bis rights and credits after the payment of all just debts and expenses, be gave unto bis four daughters, Auley Logan, Elizabeth Annin, Lenah Vandoren, and Mary Vandoren, to them and their heirs, share and share alike, to be paid as soon as the estate could conveniently be settled.

The executors were directed to take charge of and lease the Compton farm during the life of the testator’s son John, and on his death they were ordered to sell the same. Tbe proceeds of the sale be gave and devised to bis four- daughters and to the children of bis son John, equally to them and their heirs.

By the 11th clause of bis will, the testator directed as follows :

Should my daughters Lenah and Mary, or either of them die, leaving no legal issue, the share or shares herein bequeathed to her or them (if not paid over by my executors, and if paid over, then such part thereof as remains unexpended), I give and bequeath unto my surviving children and their heirs equally between them.”

The will was admitted to probate on the 21st September, 1811. Lenah, the daughter of the testator, died in the month of June, 1859, unmarried. A part of her share of the estate, which had been paid over to her by the executors, remained at the time of her death unexpended in the hands of her agent and attorney in fact, John M. Wyckoff.

Answers have been filed by the administrator of Lenah, the legatee, by John Mr. Wyckoff, her agent, and by the administrator of her deceased brother, John Vandoren. All desire that the title to the fund should be settled. The facts are not disputed.

It was conceded upon the argument, and I think properly, that the gift over of the shares of Lenah and Mary, upon their dying without issue, included only their proportionate share of the proceeds of the sales of the land and of the residu,e of the estate, and did not extend to the household furniture and chattels specifically bequeathed to them. The description of the gift, as “the shares bequeathed, ” and the expressions in the limitation over, applied to the gift, viz., “not paid over” and “paid over,” justify the limitation of the clause solely to the legatees’ shares of the money in exclusion of the chattels specifically bequeathed.

Is the limitation over valid, or did Lenah take the legacy absolutely ?

The limitation over is clearly upon a definite, and not an indefinite failure of issue. The gift over is to the testator’s surviving children. And it was within the contemplation of the testator that the money might be paid over by his executors as a part of his personal estate. The terms of the gift, therefore, are not such as to create an estate tail in real estate or an absolute gift of the personalty.

The only ground relied upon in support of the claim of an absolute gift to Lenali is, that tbe terms of limitation over imply an absolute power of disposition by tbe legatee which is inconsistent with any less estate than the absolute ownership.

The original bequests are absolute. They give the property to the legatee without limitation or qualification. The gift over upon the death of the legatee without issue is not of the entire legacy, which would have qualified the original gift, and made it-a gift for life, but it is of “ suehpart thereof as remains wie%pended."

In the case of the Attorney General v. Hall, decided in the Court of Chancery in 1731, the testator gave all his real and personal estate to his son and the heirs of his body ; and if his son should die leaving no heirs of his body living, then the testator gave and bequeathed so much of his said real and personal estate as his said son should die possessed of at his death to the Goldsmith’s Company of London, upon certain trusts. The devisee suffered a recovery of the real estate to bar the entail, made a will of his personal estate, and died without issue. A bill was filed to have an account for the trusts in the will of so much of the real and personal estate of the testator as the son died possessed of. As to the real estate, it was held that the son took an estate tail, and that the claim of the plaintiffs, as to that, was barred by the common recovery. Upon the construction of the will, the court held that the limitation over was void, as the absolute ownership had been given to the son, for it is to him and the heirs of his body, and the company are to have no more than he shall have left misgpent, and therefore he had power to dispose of the whole, which power was not expressly given to him, but it resulted from his interest.

The court also held that the words which gave an estate tail in the lands must transfer the entire property of the personal estate, and then nothing remained to be given over; and upon both these grounds the bill was dismissed. Fitzgibbon 314.

So far as regards the first point, the case was nearly idenlical with the present.

In a note of a report of the same case in W. Kelynge 13, to be found in Coventry & Hughes’ Dig. 616, the principle of the decision is stated thus : The limitation over of a chattel personal is void where the property is vested, and not the use only. The case in Fitzgibbon is cited with approbation by Lord Hardwicke in Flanders v. Clark, 1 Ves. sen. 10.

The authorities upon the point, sustaining generally the same principle in regard to devises of real estate as well as legacies, are numerous. It seems clearly settled that a right in the legatee or devisee to dispose of the estate given or devised at his pleasure, and not a mere power of specifying who may take, amounts to an absolute gift. Bull v. Kingston, 1 Mer. 314; Bowne v. Gibbs, 1 Russ. & Mylne 614; Jackson v. Coleman, 2 Johns. R. 391; Jackson v. Bull, 10 Johns. R. 18; Jackson v. Robins, 15 Johns. R. 169; S. C. in error, 16 Johns. R. 586; Jackson v. Delancey, 13 Johns. R. 537; Ide v. Ide, 5 Mass. 500; Burbank v. Whitney, 24 Pick. 146; Nelson v. Cooper, 4 Leigh 408; Barnard v. Bailey, 2 Harring. 56.

In Ramsdell v. Ramsdell, 21 Maine 292, Shepley, J., said, It has become the settled rule of law that if the devisee or legatee have the absolute right to dispose of the property at pleasure the devise over is inoperative.”

The same principle was admitted, both by the Supreme Court and Court of Appeals of this state, in the case of Armstrong v. Kent. The decision of the Supreme Court in that case was reversed, on the ground that the power of disposing by will was a power of appointment, and did not confer property, or involve the idea of property, in the first devisee. 1 Zab. 509; 2 Halst. Ch. R. 637-647.

The general principle is not controverted, but the case under consideration is sought to be distinguished from the reported cases, and to he taken out of the operation of the principle, on the ground that the gift over is not of such part of the legacy as remains undisposed of, but of such part thereof as remains unexpended. The former expression, it was urged, involves an absolute power of disposition by sale or gift, which, the latter does not. Expenditure, it was said, does not mean given away, and the provision is merely equivalent to giving to the legatee the light of expending the interest and so much of the principal as might he necessary for her support, and disposing of the residue by the gift over, which would be clearly good. I was strongly disposed to adopt this suggestion, being willing to lay hold of any circumstance by which I might prevent the undoubted intention of this testator being defeated by a strict rule of law. But, on a careful examination of the cases, I do not see how the present case can he distinguished in principle from the adjudicated cases, or how this bequest can he sustained without a violation of the principle. The cases rest upon the principle, that if the testator, either expressly or by implication, manifests an intent to vest in the first legatee the uncontrolled power of disposing of the property, such power involves the idea of absolute ownership, and the limitation over is void, as inconsistent with the rights of the first legatee. The uncontrolled power of expenditure necessarily implies absolute ownership as fully as the power of disposing of it. And this difficulty can only be overcome by limiting the right of expenditure to so much as may he necessary for the support of the legatee. But there is no such limitation in the will. If the legatee had seen fit to expend the whole of the legacy in a style of living totally distinct from that to which she had been accustomed in her father’s house, there would have been no power in this court or elsewhere to prevent it. The unlimited power of expending the legacy involving the idea of absolute ownership as fully as the absolute power of disposing of it, a gift over of so much of the legacy as remains unexpended is tantamount to a gift of so much as remains, or so much as remains undisposed of. All the expressions involve the idea that the legatee should expend or dispose of the money as she sees fit, in other words, that she has the right of absolute ownership.

That probably was the idea of the testator. He gave to each of his married daughters her share of the property absolutely. To each of his unmarried daughters he gave her share in the same mode and by the same terms. He intended they should have the right to use, enjoy, and expend it as- they saw lit. But so much as they should leave unexpended, in case they should have no children, he desired should go to the other children or descendants of the testator. He was not aware of the rule of law which prohibited his disposing of property, the absolute control of which he had already given to another.

The limitation over of the legacy, if not paid by his executors, would be clearly good if standing alone. But in connection with the other clause of the limitation, it cannot avail to change the construction or effect of the limitation over.

The executors of Jacob Vandoren were justified in paying over the legacy to Lenah Vandoren without security. Such' was the manifest intent of the testator. They would have been justified in so doing, even if the limitation over had been declared valid.

The bill was properly filed by the present complainants. The executors of the surviving executor are the executors of the will.

It was not necessary, however, that the bill should have been filed by the complainants. It might with propriety have been filed by those claiming the estate under the limitation over.

Wherever the gift over is valid, equity treats the gift,, direction, or recommendation as creating a trust in favor of those to whom the gift is made. And the cases in equity have frequently arisen upon bills filed by the cestui que trusts for the recovery of the property ; and when the gift was of the property which remained at the death of the first devisee, the question whether the trust was created will be found to have been decided sometimes upon the ground that the prior disposition of the property imparted absolute ownership, and at others upon the ground that the property to which the trust was to attach was not certain or definite. Bull v. Kingston, 1 Mer. 314; Bowens. Gibbs, 1 Russ. & Mylne 614; 2 Story’s Eq. Jur., § 1070; 2 Roper on Leg. 1431.

Answers are filed by the administrator of Lenab Vandoren, and also by a party claiming to be her executor, duly .appointed by an instrument which is alleged to have been improvidently destroyed, and which the defendant asks to have established by this court as the last will and testament of the said Lenah. That question cannot be determined in this suit. Letters of administration upon the estate have been duly granted. The administrator is before the court. For the purposes of this suit, his title as administrator must be recognized. If the will is to be established, it must be by a bill duly exhibited for that purpose. Until that is done, the title of the party claiming to be executor cannot be admitted.

As to costs, the general rule is well settled, that where executors come into court to settle the true construction of the will, or for direction as to their duty, they are entitled to costs out of the estate. And although the general rule is, that where a bill is dismissed no costs are allowed to the plaintiff, yet there are cases where he has his costs although he fails to recover. One case, as stated by Lord Langdale, is where the fund is administered by reason of the suit of the plaintiff, and the rights of all parties have been ascertained and determined, and the fund divided accordingly. Another is, where in fact the fund is not administered by the court, but where the court is of opinion that it is either necessary or proper, at the instance of some person, that a declaration should be made determining the rights of the parties, and in that case the court makes a decree and saves the plaintiff his costs. Merlin v. Blagrave, 25 Beav. 136.

“ The rule in the Court of Chancery is, that where the will raises a doubt, you make the estate pay the costs of the litigation.” Knight v. Boughton, 11 Clark & Fin. 555.

These costs would be a proper charge upon the estate of the complainants’ testator ; and had the bill been filed either by the executors or by the legatee while the estate remained hi the hands of the executors, the costs would have been directed to be paid out of his estate. But that estate has long since been settled, and it is now sought to charge the costs upon the legacy itself or upon the estate of the legatee. The fund is not under the control of the court to be distributed or administered here, but has been paid over to the legatee, to whose estate it rightfully belongs. Upon the stirring of the question it seemed to me a very proper case for the allowance of costs, and my strong inclination was to allow them, for the executors have manifestly acted in good faith and for the interest of all parties concerned. But 1 am unable to see any principle upon which the costs of the complainants can with any propriety be charged upon the estate of the legatee.

The bill must therefore be dismissed without costs to either party, as against the other.

Cited in Downey v. Bowden, 7 Vroom, 467.  