
    Pierrepont, Executor, &c., v. Edwards et al.
    
    A testator gave Ms widow, in case he left a child of the marriage, an annuity during widowhood of $8,000, payable “ out of the income of my estate.” The next clause of the will gave her, in case there should be no child, án annuity of $7,000 (which was the only provision in her favor); and disposed of “ the residue of the income ” to a brother and sisters for their lives, with remainder to their children, on the death or marriage of the testator’s widow: Held, that the annuity of $7,000 was a demonstrative legacy, payable out of the principal of the estate in case of a deficiency of income, although it was proved that the testator, when making his will, believed that his estate would afford a rehable surplus of income, after paying the larger annuity.
    Appeal from the Supreme Court. Action by the executor for a construction of the will of Alfred H. P. Edwards, deceased. The will was made Dec. 27,1856, and took effect by the death of the testator, January 4, 1857. It gave the entire estate, real and personal, of the intestate, in trust to his executors, directing, 1. That the executors, in their discretion, should sell and convert into money any of the estate, real or personal, which might be unsafe or unproductive, and invest the proceeds in safe and productive securities. 2. That the executors should pay, out of the income of the estate thus invested, $8,000 per annum to his wife, in case the testator should leave a child or children by her, so long as she should remain a widow. 3. If there should be no child or children, then the executors were directed to pay to the widow $7,000 per annum so long as she should remain a widow, and to pay the residue of the income of the estate, in equal portions, to a brother and two married sisters of the testator. At the death or marriage of the widow, in case no children of the testator survived, the executors were directed to pay the income of the estate to .the testator’s brother and sisters, in equal, portions: the children of the brother and sisters, in case of the death of either of them, leaving children, to receive the share of their parent, and in case either died childless, or their child or children should die, then the share of the child or children to go to the survivors of the testator’s'brother and sisters. 4. In case the testator left a child or children, the estate was to remain in trust for their benefit during minority, and then to be paid over to them in equal portions, reserving in trust the annuity of $8,000 for his wife during widowhood, and if she ceased to be his widow, the executors were to invest the income of the estate, after paying the expenses of supporting the children, and pay the latter their equal shares on .their arriving at full age respectively; and in cáse no child of the testator survived its mother, then, on the death or marriage of the latter, the estate was to remain in trust for the use of the brother and sisters during life, remainder to their children.
    One of the two executors named did not qualify. The testator had no child. He left him, surviving his widow, a brother and two sisters. The personal estate, which consisted almost entirely of stocks, and an interest in seven vessels, was ap praised at $132,136. The real estate, valued at about $32,000, was unproductive, consisting mainly of wild lands in the State of Illinois. On the trial at special term without a jury the court found, as matter of fact, that when the testator died, he supposed his estate worth at least $200,000, and that it would yield a reliable income of not less than $11,000, and that in no anticipated contingency could the net income be less than $8,000 per annum. That shortly after the testator’s death, a commercial revulsion occurred, during which most of the stocks belonging to the estate ceased to pay dividends and his vessels to earn freights. The income fell below $7,000 per annum, and the executor was compelled to pay out a considerable part of it in taking care of the unproductive property. He could not sell the unproductive property without great sacrifice.
    The principal question submitted by the executor, was whether it whs his duty to pay the widow her annuity of $7,000, when the income was insufficient. He also sought the direction of the court as to his duty in respect to selling the unproductive property, and whether, until it could be sold, he should derive the means of preserving it (repairing vessels, &c.) from the income or by sale of part of the productive estate.
    The court held that the widow’s annuity was payable only from the income; that the net income in any year is the limit of the annuity when the income falls below $7,000. It held that the executor could only sell the unsafe and unproductive property, in his discretion, and that no directions affecting the exercise pf his discretion could be given. The judgment having been affirmed at general term in the first district, an appeal was brought to this court by the widow, who had claimed, among other things, that the trusts for the benefit of the testator’s brother and sisters and their children were void, and that she was entitled to share as in case of intestacy, in the estate subject to the annuity given to her. The court, both at special and general term, declined to pass upon these points, confining itself to those questions submitted by the executor in his complaint.
    
      Alexander W. Bradford, for the appellant.
    
      Edwards Pierrepont, respondent in pro. per.
    
    
      William Bliss, for the other respondents.
   Denio, J.

The only question which I think it necessary to consider, in this case, is whether the bequest of the annuity of $7,000 a year, to the testator’s wife, was specific, in the. sense that if it could not be paid out of the fund indicated— namely, the income of the trust estate — it was to fail, or to abate, in the proportion that the indicated fund should prove deficient; or, on the other hand, whether it was intended by the testator that it should be paid;' at all events the income of his property given to his trustees being pointed out, by way, as it is called, of demonstration. I am of opinion that the last-mentioned construction is the one which we aré bound to place upon the instrument. The authorities upon the question are very numerous; and the most prominent of them have been referred to" by the counsel for Mrs. Edwards, the appellant. It will be seen, by an examination of them, that no positive rule of ready application to every case can be laid down, but that each case will depend upon a consideration of all the material provisions of the will to be construed, and of the extrinsic circumstances respecting the testator’s family and estate, which may be fairly brought to bear upon the question of intent. The leading principle of the cases is, that when the testator bequeathes a sum of money, or, which is the same thing, a life annuity, in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled, merely by a direction in the will that the money is to be raised in a particular way, or out of a particular fund. (Sir James Wigram, in Dickin v. Edwards, 4 Hare, 273.) There is, in this will, a positive direction to his executors (who are also made trustees), to pay to the testator’s wife eight thousand dollars per annum, if he shall leave children, and seven thousand dollars per annum, if he shall not; but, as to the first mentioned sum, it is parcel of the direction, that it is to be paid out of the income of the estate; and it is plausibly argued, that the same qualification is annexed, by implication, to the direction to pay the seven thousand dollars per annum, in the event, which has happened, of there being no children. The evidence, and the admissions of the parties, show that the testator supposed himself to have a clear income, arising upon invested property, sufficient to pay the largest of the annuities, and to leave a considerable surplus of the income, which he destined for the benefit of his brothers and sisters. But their right to participate was to be subordinate to that of the wife, who was to be paid her $8,000, or $7,000, as the case might be, before anything should be paid to them. It now appearing that he was mistaken as to the sufficiency of his revenue to pay continuously even the smallest of the annuities, which the event has shown to be the only one which can be claimed, and that only a portion of it can be paid from the income, the question arises, which was the primary and most material portion of the testator’s intent, and which was, in his mind, the incident to such primary intention. Manifestly, it seems to me, it was that his widow should receive one or the other of the alternate sums mentioned, according to the event. In the first place, this annuity was the only provision made for her, in any part of the will. He contemplated that there might be issue of the marriage between himself and his wife, for he graduated the amount of the annuity by that circumstance; but if the provision is to be strictly conditional upon his estate continuing to yield income, it might happen that his wife and children would be without any means of support, derived from his estate, while the estate itself might be of vendible value to a large amount. It was shown that a large sum had been invested in unproductive lands, from which, of course, no revenue could be expected. • It is not suggested but that the personal property, stocks, vessels, &c., may be converted into money, at some reasonable price. It is shown, indeed, that in the present condition of the property, sufficient income will not be realized to pay the annuity in full; — whether this would be so, if it were converted into money, does not appear from the case.

But it is argued, on behalf of the brothers and sisters, that the testator is to be considered as equally solicitous to bestow a pecuniary benefit upon them as upon his wife, or his wife and children, if he should have children., Hence, it is suggested that his wishes and intentions will not be altogether disappointed, if, upon the failure of income, the body of the estate is kept unemployed during the lifetime or widowhood of his wife for the benefit of his brothers and sisters. This .view seems to me very unreasonable. The brothers and sisters were not the primary objects of these dispositions. They were only to participate in the income, provided it should be so large as to produce a surplus after applying to his wife and children the sum which he thought it necessary for them to have. There failing to be any such surplus, the benefits intended for them were to be postponed, until after her death. But it was only on a contingency that they ’ were then to have any interest; for if the testator should leave children, the brothers and sisters would be wholly excluded from participation. Again, in the event of' there being no children, the brothers and sisters did not occupy so favorable a position as that of devisees in remainder, after the death of his wife; for it was their children, and not themselves, who, upon the event of the extinction of his own family, were to become the final beneficiaries of the estate. And, further, the first paragraph of the fourth division of the will proves, beyond question, that the testator had no such intention as is attributed to him, of confining the widow strictly to a participation in the income, and of preserving the whole of the principal for the benefit of the brothers and sisters, and their issue. The provision is that if there should be children, upon their attaining their majority, the sum of eight thousand dollars per annum should still be reserved for the benefit of his wife. It cannot be pretended that this provision was limited, to the case of his investments yielding income to the required amount, for the direction is positive and unconditional, that such a sum should be reserved for her. If the property, as invested, was unproductive of income, it would be the duty of the trustees, by the purchase of a life annuity, or in some other way, to secure the payment of the yearly allowance mentioned.

If we were to hold that the widow was to have nothing, less the property or securities in which the estate happened to be invested yielded income, and that she was not to be paid the full seven thousand dollars per annum, directed to be paid to her, unless the investments should happen to yield that sum, we should, in my opinion, sacrifice the substance and primary intention of the will for the sake of an incidental provision, inserted for the convenience of the estate, and not intended to limit or control, or to render uncertain or conditional, the provision in her favor; and I think, moreover, that the case is within the spirit of the authorities which have been referred to by the counsel for the appellant. To these may be added, for the purpose of presenting an early and a recent case, The Attorney-General v. Parkin (Ambler, 566), and Colvette v. Middleton (3 Bevan, 520); and, also, for a recognition of the doctrine in this court, Teft v. Porter (4 Seld., 566), Giddings v. Seward (16 N. Y., 365), De Nottebeck v. Astor (3 Kern., 104, 105).

I see no reason for interfering with or attempting to regulate the discretion of the trustees, upon the subject of the sale of the unproductive or the unsafe property. The right of the widow to the annuity does not, in' our opinion, depend upon such sales. The trustees should be guided by the circumstances of the property, and the necessities of the estate. There are not sufficient facts before us to show whether, at present, a sale would, or would not, be judicious.

I am in favor of reversing the judgment of the Supreme Court, and of entering a judgment in conformity with the foregoing views,— to be settled before one of the judges.

Wright, Allen and Smith, Js., concurred.

Gould, J., (dissenting.)

The claim made by the widow that there is no limitation by the will of the principal of the estate, as well as her other claim that the trust is illegal in point of duration, and therefore void, so that sustaining either of her claims would make a case of intestacy and allow her to come in under the statute of distribution for one-half of the personalty, which is far the larger share of the estate; these claims make.it necessary to give a decision on the points thus taken, as they lie back of the questions of the disposition of income and the sale of unproductive property.

That the testator’s nephews and neices are not parties to this suit, interposes no objection to our passing upon these points, since, first, it is not certain, from the tenor of the will, that those now in being will, by surviving their parents, be ultimately entitled; and, secondly, as the widow has not seen fit to ask for their being made parties, or to take objection because they have not been so; it does not rest with her to say that a present decision of these points will not conclude her as well as all others who are parties to the suit.

The third and fourth clauses of the will, so far as they relate to the same subject-matter, are to be construed together; and if one is inconsistent with the other, that is to be held the true, effective clause by which a binding disposition will be made, rather than that by which the will would be rendered inoperative or void. Gruided by this rule, and conceding that the third clause disposes merely of the income in any event, it is plain that the fourth clause, which directs that, on the death or marriage of the wife, the “ estate remain in trust for the use of my said brother and sisters during their respective lives, and the remainder to go to their children,” disposes of the remainder of the estate and not of the income; that is, makes full disposition of the entire trust estate. And in case there be no taker of a part of this estate, under this clause, by reason of the death 'of the brother or one or more of the sisters without leaving a child, then we resort to the third clause, to find where such one-third part of the estate is to go.

We thus find this to be the disposition of the estate: The whole title is in the trustees for the benefit of two classes of persons—one, the widow during life or widowhood; the other, the brother and two sisters “ during their respective lives.” And as the limitation to the widow may (as the event has proved) exhaust the income, or whether it does or not, this part of the limitation is undoubtedly good, and makes a valid trust estate.' The trust to pay to the brother and sisters each one-third of the residue of the income during their respective lives is also valid; and if either of them die childless, “then the share of said child ” (that is, the share that would have gone to the child of the deceased brother or sister, had there been such a child, which share, as the fourth clause is above construed, is one-third of the estate, subject to the trust for the life of the widow, should she survive such brother or sister so dying) is to go to the survivor or survivors of such brother and sisters. If such death occur during the widow’s life (or widowhood) the equitable interest in such one-third vests at once in the survivor or survivors, to be followed by the conveyance of the legal title, whenever the life estate or widowhood is at an end. If such death occur after the determination of the widow’s life, &c., then the conveyance of the legal title of such one-third is to be made at once. This is, for each one-third, respectively, a legal limitation. And wé are not to make void what is legal, by speculating on the possibility of an event by which such a disposition could not be made. So far as it is legal we sustain it, and carry out the intent of the testator as far as may be. When any other exigency occurs, the courts will find for it the appropriate rule.

As' to the position that the widow is entitled to dower in the realty, besides her annuity, it is effectually disposed of by the fact that she has, by accepting her annuity from the trustees, affirmed the estate in them; and that estate is in and of the whole property of the testator, leaving nothing of which to endow her. She has elected to take under the will, and cannot assert a right against it.

Under the trust, then, what are her rights and what is the duty of the trustees ? By the second clause, her annuity is expressly to be paid out of income, $8,000 ; by the third clause, her annuity is reduced to $7,000, so that the testator necessarily supposed the income would exceed the annuity ; and the “ residue of the income,” after paying her the $7,000 (for there is no other legacy to be paid so as to leave á residue), is bequeathed to the brother and sisters. There is no possibility of understanding this otherwise than as a legacy to be paid out of income. And it is equally plain that it must have been intended to be paid out of the net income of the .estate, otherwise,.as the sum of $7,000 is given out of income, and the residue of income is given over, this residue would call for all the gross income of the estate, and the principal would of necessity be annually decreasing, by the amount of all the expenses of the estate. This could never have been intended, especially by one who limited over the principal—all the prin-’ cipal—after life estates.

It is not consistent with this view, that, if the net income of any one year should be unequal to paying the widow’s annuity for that year, she should have a debt due to her from the trust estate, equal to the deficiency, to be paid out of sub-' sequently accruing income. The contingency is one not contemplated and not provided for, and she, as the legatee, sustains the loss caused by omission. So long as the construction of wills is limited to finding and carrying out (as far as the law allows) the intention of the testator, it hardly seems possible to hold that a testator who plainly supposed the income of his estate more than adequate to the payment of an annuity, intended to give an annuity which would, or might, annually reduce the principal of his estate till the payment of any part of the annuity would become impossible by the using up of the whole estate.

As to the power of the trustee to sell, or calling it a direction to sell, it is merely to sell for the purpose of investment in more productive property, "and with no view to the payment of any legacy or .to interfering with the principal'of the estate in any way but to increase it, or make it produce a larger income for the benefit (as intended) of the takers of the residue of the income. . '

Such a power, involving judgment and discretion as to what • may properly be called “unsafe or unproductivejudgment and discretion, also, as to the possibility of selling such property at a price not ruinously low; judgment and discretion, further, in investing the proceeds in safe and productive securities, is necessarily of a nature not to allow the interference of the courts. The testator has selected the person on whom to confer this large discretionarypo wer, and that person is to proceed according to his discretion, while he will be responsible for only the exercise of such prudence as.he uses in the discharge of his own business. While the court have-no right to direct his actions, they see no reason to question his having acted in entire good faith; and the unfortunate results, as to parts of the estate, are in no degree to be attributed to either want of care or want of judgment on his part, but are merely the unforeseen and unavoidable consequences of calamities for which he is not responsible.

There seems no reason why the decree of the Supreme Court át general term, should be disturbed. It should be affirmed.

Davies, J., also dissented.

Judgment reversed.  