
    HORTON W. JONES, ADMR. OF LOYAL C. REMELE v. ASHMUN A. KNAPPEN, ET AL.
    
      Construction of will. Widow. Remaindermen. Costs.
    
    1. A legacy to A alone, not naming his heirs, lapses by the death of the legatee before that of the testator.
    2. ' The testator, after giving his wife a specific legacy and the use of all his estate during her natural life, said : “At her decease I give, devise and bequeath all my estate that may be remaining as follows.” He then gave certain sums to individual legatees, and the residue to the next of kin of himself and wife in equal proportions. The testator deceased before his wife. Held, that the remainders vested upon the death of the testator and not upon that of his wife.
    3. The widow waived the provisions of the will, and elected to take under the statute. After paying her what she would thus become entitled to and the specific legacies, almost nothing would be left for the remaindermen. Held, that the estate should be allowed to accumulate for their benefit during the life of the widow, and that the specific legacies were not payable until her death.
    4. This being an appeal from a decree of the Probate Court, coming into the Supreme Court upon exceptions from the County Court, the Supreme Court can make no order as to costs, except costs occuring in that court.
    This was an appeal from a decree of the Probate Court distributing tlie estate of Loyal C. Eemele. Trial by court at tlie December term, 1890, Start, J., presiding.
    Tlie appellants except.
    Tlie following was the will of the testator, omitting the specific legacies to persons other than his wife: “ First, I give, devise and bequeath to my wife, Alma Eemele, the sum of one thousand dollars, and direct that my administrator in addition thereto pay to her and for her benefit the use and income of all my estate as long as she shall live.' At her decease, I give, devise and bequeath all my estate that may be remaining as follows, namely: * * * And the rest, residue and remainder of my estate, I give, devise and bequeath to the next of kin of myself and my wife, one-lialf to the next of kin of myself, to be distributed according to the law of intestate estates, and the other half of said residue, to the next of kin of my wife, Alma, as if it was her estate, to be distributed according to the law of intestate estates.”
    The decree of the County Court was as follows:
    1st. That the said legacy of five hundred dollars to said Iiiram' Alden, lapsed by his decease before the testator.
    2d. That all the legacies given by said will, as well the pecuniary as the residuary legacies, excepting only said legacy to Hiram Alden and the legacies given to said widow, vested in said legatees respectively at the decease of the testator, but that the enjoyment of the same is postponed to the time of the decease of said widow.
    3d. That the period of enjoyment of said legacies is in no case accelerated by the election of said widow declining to accept the provisions made for her in and by said will, but that the time of enjoyment of each and all of said legacies, as well residuary as pecuniary, remains the same as if said widow had taken the provisions made for her in and by said will.
    And it is here!)y, pro-forma and without hearing, decreed that said administrator be, and lie is hereby directed by this court to hold the said portion of said estate so in liis hands remaining, that is to say, said sum of1 $8,399.75, until such time as said widow shall decease, and in the meantime to keep the same invested in safe and productive securities, and to receive, retain and re-invest the income thereof ;
    And upon the decease of said Alma líemele, widow as aforesaid, to turn such securities into cash, and out of the same to pay all the said pecuniary legacies (not including said legacy to said Hiram Alden nor said legacy to said-widow, Alma "Remele), with interest from the decease of said Alma, and to distribute and pay out the residue thereof, less administration expenses,, to said residuary legatees in the shares and proportions following, that is to say : * * * * And the reversion of the -widow’s dower is reserved for further decree.
    The remaining facts sufficiently appear in the opinion.
    
      
      Bliss & Boyce, for tlie appellants.
    All the legacies vested upon the death of the testator, their enjoyment being postponed until the decease of the widow. 2 Redi. Wills, 215, et seq., 266, 267 ; Weatherheacl v. Stoddard, 58 Yt. 629 ; 1 Jar. Wills (Ed. 1861), 758; Neilson v. Bishop (N. J.) 17 Atl. Rep. 962; Dale v. White, 33 Conn. 294; Eldredge v. Eldredge (N J.) 3 Cent. R. 344: Bull v. Bull, 8 Conn. 47; 20 Am. Dee. 86; IToffen’s Estate, 70 Wis. 522; Eagles v. Le-Breton, L. R. 15 Eq. Oas. 148.
    The waiver by the widow of the provisions of the will operated to accelerate the payment of all the legacies, and they thereby became payable immediately.
    
      Steioart A Wilds, for the plaintiff.
    The remainder to the kin of the wife would not vest until her death. 2 Redi. Wills 621, § 39.
    The court should carry out as nearly as possible the intent of the testator. That can only be done in reference to the remaindermen in this case by allowing tlie estate to accumulate during the life of the widow for their benefit.
    
      Adams v. Gillespie, 2 Jones Eq. 244; Firth v. Denny, 2 Allen 468 ; Fox v. Rumery, 68 Me. 121.
   The opinion of the coúrt was delivered by

ROSS, Ch. J.

Hiram Alden died before the testator. Tlie legacy w'as to him alone, and not to him or his heirs. It lapsed by his decease antedating the testator. It is not otherwise contended. Careton v. Murrey, 94 Am. Dec. 152 and note.

2. The testator, in addition to a specific devise to his wife, gave her the use and income of his estate during her natural life. He then proceeds. “ At her decease I give, devise and bequeath all my estate that may be remaining as follows.” He then gives certain sums to individual legatees, and the residue to the next of kin of himself, and of his wife, to be divided one-half to the next of kin of 'each. The next of kin of each were ascertainable at the decease of the testator. The contention is whether the estate vested at the death of the testator, or at the decease of the taker for life. The language used is as consistent with an intention to postpone the enjoyment only, as to postpone the vesting of the remainder. Unless the language of the testator when applied to the circumstances of the case, clearly indicates a contrary intention, the law favors the vesting of remainders on the death of the testators when the will becomes operative. Such is presumed to be the testator’s intention unless the contrary appears. In re Tucker’s Will, 21 Atl. P. 272, 63 Vt. 104. Nodine v. Greenfield, 7 Paige’s Ch. 544, (4 Law. Ed. N. Y. Ch. P. 267 and note); De Peyster v. Clendining, id. 434 and note. (8 Paige’s Ch. 295.) If the language of the will imports a present bequest of property to be distributed at a period subsequent to the death of testator, the persons in esse at the túne of his death, will as a rule take a vested interest. Collins v. Collins, 5 Law. Ed. N. Y. Ch. R. 523 and note. (2 Paige’s Ch. 9.)

So, where the benefit of a legacy is given for life to one, and after his decease to another, the interest of the second legatee is generally vested, and passes to the heirs of the second legatee, though he die during the existence of the life of the first taker. Barker v. Woods, 7 Law. Ed. N. Y. Ch. R. 265 and note. (1 Sand. Ch. 129.) We think the language used by the testator was intended only to postpone the enjoyment of the estate, the life use of which was given to his wife; and that the' legatees, including the next of kin, took a vested interest in the estate, if the estate was sufficiently large to reach the next of kin, under the clause disposing of the residue.

3. The widow waived the provisions of the will, and took the share of the estate allowed by law. The contention is whether this waiver accelerated the time when the special legatees and next of kin are tó come into the enjoyment of the respective proportions of tlie estate. Generally the termination of the life estate before the decease of the life tenant, lets the reversioner into immediate enjoyment of the estate. When the widow waives the provisions of tlie will, and takes under the law, such action usually diminishes the amount of the estate available for the other legatees or devisees pro rata, and it is equitable that they should come earlier into the enjoyment of their diminished legacies to compensate them for the diminution caused by such action. Such waiver blots out all the provisions of will for the widow, and leaves the remaining provisions of the will in force, to be accommodated equitably to the state of the testator’s property as left by such action. The testator in the present case left about $15,000 in property. He gave his wife $1,000 of this, and the use and income of all of his estate during life. In specific pecuniary legacies to be paid at her decease, he disposes of $7,500 of the estate of which she was given the use for life, and the residue he'gave to be divided half and half between his next of kin, and her next of kin. The action of the widow in waiving the provisions of the will, and taking what the law allows, operated to diminish largely the residue of the estate given to the next of kin of the testator and of his wife, if distribution is to be made at once. There is enough of the estate remaining to pay the specific pecuniary legacies in full. But these legatees will receive just what the testator set apart for them if the payment of their legacies is postponed until the decease of the widow. Such postponement •would to some extent, and perhaps wholly compensate the next of kin, for the diminution caused by the action of the widow, of that part of the estate given by the testator to them. I have found very few decided cases where the action. of the widow has affected the relative rights of the specific and residuary legatees as it does in the case. It is the first time this precise question has, been, considered by this court. Firth v. Denny, 2 Allen 468, presented this identical question. 'Without any discussion of the question of acceleration of j>ayment of specific pecuniary legacies, it was held that the estate should be held to accumulate for the benefit of the residuary legatees, until the decease of the widow. This question is raised and decided In re Ferguson's Estate, 138 Penn., 208 (20 At. R. 945). It is there held that the election of the widow to take under the law, was equivalent to her death, and that what remained of the estate after the widow took what the law allowed should be distributed at once, although such holding operated wholly to disappoint the residuary legatee. The court rests this decision largely upon Coovers Appeal, 74 Pa. St. 143. An examination of that case shows that it did not present the identical contention under consideration. The testator gave his wife a life estate, and the remainder he divided into ten equal shares, and gave each share to a particular individual, or her lawful issue, with a further provision for its distribution, in case the individual died without issue. It did not present the question of the effect of such election, when it operated to diminish the portion given to one class of legatees only. In Sandoe's Appeal, 65 Pa. St. 314, the election of the widow operated to affect some of the specific legatees unequally. The court state this to be the rale in such a case. “ The rule in equity treats the substituted devises and bequests to the wife, as a trust in her for the benefit of the disappointed claimants, to the amount of their interest therein, and the' court will assume jurisdiction to sequester the benefit intended for the refusing wife, in order to secure compensation in those whom her election disappoints.” Woer. Am. Law of Administrators 119, says on this subject: “ The rejection by the widow of the provisions made for her by will’ generally results in the diminution or contravention of devises and legacies to other parties. The rule in such case is that the devise or legacy which the widow rejects is to be applied in compensation of those whom her election disappoints. To the same effect is Wood v. Wood, 1 Met. Ky. 512; and Dean v. Hart, 62 Ala. 308. This same result in principle is reached by accelerating the enjoyment of the remainder, when the election of tlie widow only .effects equally those to whom the remainder is given. Fox v. Rumery, 68 Me. 121; State v. Smith, 16 B. J. Lea. Tenn. 662; Holderby v. Walker, 3 Jones Eq. 46; Robinson v. Harrison, 2 Tenn. Ch. 11; Armstrong v. Park, Hum. (Tenn. R.) 195 ; Capron v. Capron, 6 Mackey, 340, (12 Cent. Rep. 43.) In Adams v. Gillespie, 2 Jones Eq. 245, tlie facts appear to raise the question raised by the case at bar, but the decision does not touch upon it further than to hold that the election of the widow removed her life estate from the property, and accelerated the enjoyment of the next life taker. The other cases cited by the counsel for the appellant do not bear specially upon the point under consideration. The controlling, and, we think the more reasonable principle, announced in most of these cases, is the one expressed by AVoerner, stopra, viz., to use tlie renounced devises and legacies given by the will to the widow, to compensate as far as may be, the devises and legacies diminished by such renunciation. AVlien the remaindermen are effected pro rata by such renunciation, acceleration of the enjoyment of their devises or legacies, diminished proportionably, will equitably compensate them, so far as possible for such diminution. But in this case acceleration of enjoyment would increase the specific pecuniary legacies, to the detriment of the residuary legatees, whose shares only are diminished by the renunciation. Applying the principle stated, the life use of the property given by the will to the widow, and renounced by her, should be used to compensate tlie residuary legatees, the next of kin of the testator and of his wife. This may be accomplished by allowing that portion of the estate, not taken by the widow, to accumulate during her natural life, or, by the consent of the parties interested, the same result could be reached by reducing to their present worth, the specific pecuniary lega, cies, on the basis of the expectation of the life of the widow, and distributing the estate at once. The latter could only be done by consent, but would save the expense of caring for that portion of the estate which is available for the specific and residuary legatees, and avoid liability of loss from keeping .it invested. This result affirms the judgment of the County Court.

"VYeare asked to make an order, that the costs of both parties, including attorneys’ charges be paid out of the fund. This is in effect, a proceeding to obtain construction of the- will, and, if in ecpiity, we should make such an order. But this is an appeal from the decree óf the Probate Court, to the County Court, coming to this court on exce]3tions. The only power over costs in such a case is that given by B. L. 2280. Under this section, by consent of the appellee, we allow the appellant to recover costs, in this court. Further than this we do not understand we have power over costs and expenses of this litigation.

Judgment affirmed, with costs to the appellant in this court, ordered to be certified to the Probate Court.  