
    Emma Shepherd v. J. Frank Davis and Ward Muchmore, trustees, et al.
    [Decided March 26th, 1920.]
    1. When the event upon which legacies are given is certain, although the time when they .are t» tallse effect is uncertain, ithe ¡legacies vest at the testator’s death, subject only to being defeated by the death of a legatee prior to the time when, such legatee doulid come into possession.
    2. Where a will provided that certain income should be paid to A, and upon his decease -that share of income “otherwise and theretofore payable to him” shall b,e equally divided dmto two parts, .and lone part thereof paid to B, the gift of O is not dependent upon the taking- of A, as all the legacies vest bogeflber at the testator’s didath.
    On bill for accounting, &c.
    
      Mr. Charles C. Pilgrim, for the complainant.
    
      Mr. Wilbur A. Heistey, for the defendants Annie Davis and others.
    
      Messrs. Church, Harrison ■& 'Roche, for the defendants Ward W. Muchmore and others.
   Fielder, V. C.

This case was argued on the pleadings and on a' stipulation between counsel fixing the dates of death of the several persons hereinafter mentioned.

Henry Smith, who died January 31st, 1902, left a will dated April 9th, 1898, admitted to probate in Essex county. The controversy presented by the pleadings calls for the construction of the fourth clause of the will, which is as follows:

“Fourth : — Ail of the rest, residue amid remainder of mry estate, real, pecnsomlal amid mixed, wheresoever the isame may he situate, I do give, devise and bequeath to my -executoris hereSniaffier nlamted, in itruisit, never the-less, it(o keep the .salme safely .and properly invested (preferably in first, and first «lass bond .and mortgage) for the following purpose:
“1. ¶0 pay to my Said wife, Annie, the isum of ronie hundred and thirty dofilars ($130) each and every miomith for land during thie term of her natural life, which mlomthly ,sum I direct shall be iso paid by itheim to her, if necessary, from the principal and ini preference to ¡all olther charge® and payments whatsoever. Amd I do füifjher order and direct that the met balance iamd remainder lof the income to be .dlerived from my said residuary estate shall, laifc periods of mot less than half yearly, be divided info two equal parts, lone of which ¡Salid parts ishiali be paid to my daughter Annie Davis for amd during .the term of her nlaturia! life, and the oliher .of which said parts shall, in Hhe manner, be paid to my daughter, Florence Muchmiore, for land during the term/ of her natural life. And I dlo further ordier rand direct ithat, upon the decease of eithiar fche said Amnie Davis lor Florence -Muehmiore, ’my executors toerieiinlafter mam'ed, shall from my residuary estate forfihwiith pay, in. 'cash, the sum of onla thousand dollars ($1,000) |t|o each child of my daughter so deceased, which said sum of’ sums of oinle thousand dollars ($1,000) wihen so plaid, shall be in full 'settlement land discharge lof such child or children’s claim upon my estate under this my will.
“And the ¡salid part lor share /of the net income otherwise and theretofore payable to my deceased daughter ¡Shall be plaid to my said son, Henry E. Smith', for and' during the Harm of hits natural -life. Upon the decease of ¡either miy said son lor surviving daughter and paymlent of this sum of one thousand dollars ($1,000) to elaoh her surviving ahil'd or children, so as aforesaid, I dlo order iamd direct that the share of income otherwi®'e and theretofore payable .to him iot to Iher, shall be equally divided into twio parts, one of which .said parltls I dlo- order land direct shall be paid to my sister, Emlmia Shepherd!, and ithe other lof said parts I do order and direct shial-l be paid to my brother, Edwin Smith, during the term of their natural' lives, amid up.au the decease lof either, the portion otherwise and /theretofore paylable to her or to .him shall .go to lam'd form p.art of my said residuary estate. Upon the death of any twio of my said children and of my said wife, said trust shall determine and I do give, devise and bequeath my then remlalinimg residuary estate to th'e survivor, Ms 'or her hears, 'executions and administrators forever, subject however to the payment semi-annually to my said sister and brother during their life or lives, ¡of -a ¡sum or isumis ’equial to the portion of income lastly payable to her or him before the dateirmlnlaitioin ¡of ¡Said trust.”

All Hie persons named in this clause survived the testator except his brother, Edwin Smith, who died early in the year 1898, and the subsequent deaths were as follows: Annie Smith, wife oí testator, died April 18th, 1905. Florence Muchmore, daughter of testator, died June 10th, 1918. Henry E.- Smith, son of testator, died February 28th, 1912.

The other two persons named in this clause; viz., Emma Shepherd, sister of the testator, and Annie Davis, his daughter, are alive, the former being the complainant herein. The defendants are Annie Davis and the husband and two daughters of Florence Muchmore, deceased.

The question presented is whether the death of Henry E. Smith, son of the -testator, before Florence Muchmore, affects the right of complainant to receive the income, which under the quoted clause of the will was provided for her. The defendants contend that complainant was to take only on condition that Henry E. Smith lived to take and they point to the direction in the will that upon the decease of Henry E. Smith “the share of income otherwise and theretofore payable to him or to her, shall be equally divided into two parts,” one of which parts should be paid to Emma Shepherd, as upholding their view. In other words, that the interest of Emma Shepherd was to come through Henry E. Smith and upon his death before Florence Muchmore, his share of the income lapsed and fell into the residuary estate.

My conclusion is that the complainant must prevail. The testator knew that death is not a-n event which may or may not happen. He knew that it was bound to occur in the case of all his beneficiaries and that they might not die in the order in which he named them. There were certain persons for whom he wished to provide and to some he desired to give more than to others and he wanted to provide for them in a certain order, namely, his wife first; his daughters next; then a sum for the children of a deceased daughter; next his son, Henry E. Smith, and finally, before disposing of his residuary estate absolutely, his sister, Emma Shepherd, and his brother, Edwin Smith. To carry out his intention, he gave his residuary estate to his executors in trust and directed them to make the payments therefrom. When he said, “upon the decease of either the said Annie Davis or Florence Muchmore,” he meant to speak of their death generally, whenever it might happen and when that event had occurred and the necessity for providing for Ms wife and the deceased child had terminated, the executors were direeted to pay a portion of the income to his son Henry, but it so happened that when Elorenee Muchmore died (the testator’s wife being then dead), Henry was not alive to take. The will then goes on to say that “upon the decease” (not “after the decease” or “at the decease” but again speaking generally of death) of either Henry E. Smith or Annie Davis

“I do lordor iaind -direot tíhiait (tibe áluairo iof óiiiCiOim.e .Ojtherwise and theretofore payable to Jbiim •ae tilo -heir, isbail be equally divided into' two pants * * *, ton:e of which shall be paid to my sisrtldr Bmnm Shepherd.”

I think these provisions for the beneficiaries fall within the rale laid down in Beatty v. Montgomery, 21 N. J. Eq. 324, the event upon which the legacies were given being certain, although the time when they were to take effect was uncertain and that the legacies vested in them on the testator’s death, subject only to being defeated by their death prior to the time when they could come into possession.

In other words;, testator intended a portion of income for Emma Shepherd and merely postponed the time of its receipt to let in the interest of Henry E. Smith, should he be alive. This gave her a vested interest, although its enjoyment was postponed until the preceding life estates were determined, and might be entirely defeated by her death in the lifetime of the preceding life tenants. Post v. Herbert, 27 N. J. Eq. 540, 544; Howell v. Green, 31 N. J. Law 570, 573. It is not material that the gift to her was of an interest in the fund and not of the fund itself. Howell v. Green, supra.

The case lies within that class of cases in which the fund is bequeathed in fractional interests, in succession, at periods and upon certain conditions annexed to the preceding estates which must happen, and if the preceding or contingent estate should never arise or take effect, the remainder over will nevertheless» take place, because all the interests vest at the same time. Smith v. Hance, 11 N. J. Law 244; Howell v. Green, supra; Chambers v. Sharp, 61 N. J. Eq. 253, 258. I consider this situation similar to the case where a life interest in a fund is prevented from being operative, as for example, the refusal of a widow to accept a devise in lieu of dower, in which event the devise or bequest in remainder is said to be accelerated and the remainderman will be entitled to come into possession at once. Macknet v. Macknet, 24 N. J. Eq. 277; Biedeman v. Sparks, 61 N. J. Eq. 226.

The defendants stress the provision that Emma Shepherd shall receive “the share of income otherwise and theretofore payable” to Henry E. Smith and they strongly urge that these words indicate an intention on the part of the testator that she should take only 'in the event that she should survive Henry E. Smith because, they say, that in the event of his death prior to hers, there could be no income “theretofore payable” to him. But I consider these words as intending to measure or define the amount of income the testator intended for her and not as words of limitation. Huber v. Mohn, 37 N. J. Eq. 432; Clark v. Morehous, 74 N. J. Eq. 658, 666.

Hpon the death of one of the testator’s daughters, Henry E. Smith was to take the share of income “theretofore payable” to her and upon the death of either Henry E. Smith or the surviving daughter, the complainant was to take a portion of the income “theretofore payable” to the one dying. One of these two would surely have been in receipt of income and it might have been that upon the death of that one, the complainant would take, and therefore the expression “income theretofore payable” was not inappropriate with what the testator had in mind, which after all was that Emma Shepherd should receive a portion of the income made payable by the will to the one predeceasing her and after whom she should take. Significance must be given to the use of the word “otherwise,” which means “but for,” or “under other circumstances” and taken in such sense the clause would read “upon the death of my son Henry E. Smith * * * I order and direct that the. share of income, which but for his death would be theretofore payable to him, shall be equally divided into two parts, one of which parts I do order and direct shall be paid to my sister, Emma Shepherd.”  