Opinion
04-01-1886
ENDICOTT v. ENDICOTT and others.
F. McGee, for complainant. P. L. Voorkees, for defendants.
Bill for construction of will, etc. On final hearing on pleadings and stipulation of counsel.
F. McGee, for complainant.
P. L. Voorkees, for defendants.
RUNYON, Ch. Thomas D. Endicott, late of May's Landing, in Atlantic county, died May 28, 1884. He left a widow and four sons and five daughters. His personal estate was appraised at $31,826.29, and his real estate, including his homestead, (valued at about $2,000,) was of the value of about $6,000. The following are the parts of his will in respect to which a judicial construction and interpretation are sought:
"Second. It is my will, and I do order, that my entire estate be and remain the same as it now is, real, personal, or mixed, including the furniture, etc., to be occupied by my beloved wife, Ann Endicott, for and during her natural life. And I further order my executors, hereinafter named, to pay over to my beloved wife, Ann Endicott, the sum of eight hundred dollars per year, for each and every year, so long as she lives, out of the rents, interest, issues, and profits thereof.
"Third. That at the decease of my beloved wife, Ann Endicott, the homestead whereon I now reside, including the furniture, etc., to become and be used by my beloved daughters, viz., Catharine, Elizabeth, and Hannah, as and for a home of and for all, or either of them, as may then be unmarried, or, if either or any of them marry and become widowed while said homestead be used or occupied as aforesaid, then to be a home for either or any of them so bereft during such widowhood.
"Fourth. It is my will, and I do hereby order and direct my said executors, hereinafter named, to place the sum of five thousand dollars at interest on some good security, and to pay the interest annually over to my beloved daughters, viz., Catharine, Elizabeth, and Hannah, for their support and maintenance in keeping such home as aforesaid.
"Fifth. And when said homestead be no longer used or occupied as aforesaid by either or any of my beloved daughters above named, then I give and devise the same to such child or children at that time living, and their heirs and assigns, forever; and the representatives of any deceased child to have the share of his or her parent.
"Sixth. And my will is that any balance that may remain of the general income, rents, interest, issues, and profits of my estate, not herein disposed of, it is my will the same be placed at interest on good security, or otherwise invested by my executors, as may seem to them safe and more advantageous to the estate and increase of the same.
"Seventh. But should both of my executors, hereinafter named, be removed by death, then the administration cum testamento annexe to place said balance at interest on real security, and in no other way whatsoever invest the same."
The scheme of this will is to keep all the estate, except the homestead and furniture, invested during the life of the widow, and to pay her $800 a year for life out of the rents, interest, and income; she to have the right to occupy the homestead and use the furniture for life. At her death the homestead and furniture are to be used as a home by Catharine, Elizabeth, and Hannah, if unmarried, and if any of them, having been married, shall become a widow during such occupation and use, such widow or widows is or are also to have the right to occupy the homestead and use the furniture with her or their sister or sisters. And in order to furnish the three daughters with the means of support there, and keeping up the property and paying taxes upon it, $5,000 are to be invested, at the testator's widow's death, and the interest is to be paid to them annually. The rest of the estate is to be kept well invested by the executors until such right of occupation shall be at an end, and then the homestead is to be divided among all of the testator's children who shall be then living, and the heirs of any deceased child or children; such heirs taking, per stirpes, the share of the parent or parents. The property other than the homestead and furniture and the $5,000 is to be divided among the testator's children at the death of the widow, and the $5,000 when the daughters cease to occupy the homestead.
In the first sentence of the second section of the will the words "the homestead" have manifestly been omitted by mistake. The intention was, it is clear, to provide that the homestead (including the furniture, etc.) should be occupied by the widow for life. The term "furniture" embraces everything about the house that has been usually enjoyed therewith, including plate, linen, china, and pictures. 2 Jarm. Wills, (R. & T.) 352.
The gift, in the third section, of the use of the homestead and furniture is, as already indicated, for the purpose of providing a home for Catharine, Elizabeth, and Hannah, if they should be unmarried at the widow's death, or for such of them as shall then be unmarried, and also for any or either of them who, having married, shall have become widowed, or shall, during such occupation by the other or others of the three daughters, become widowed.
The fourth section provides that the executors shall invest $5,000, and pay the interest annually to Catharine, Elizabeth, and Hannah, "for their support and maintenance in keeping such home as aforesaid." The expressed object of this provision shows that it was the intention of the testator that the gift should take effect when the use and enjoyment of the homestead and furniture by Catharine, Elizabeth, and Hannah, or such of them as should be entitled thereto under the third section, should begin, and not before that time; and that it should cease when that use and enjoyment come to an end. The gift is expressly for the purpose of supporting and maintaining them in keeping the homestead as a home. It is insisted, on behalf of Catharine, Elizabeth, and Hannah, that the gift is to take effect, and the enjoyment to begin, at the death of the testator, and that it is in effect an absolute gift of $5,000 to them, and that they are entitled to it now. But the expression of the purpose and objectfor which the interest of the fund is given is fatal to all of those propositions. To enable Catharine, Elizabeth, and Hannah, or such of them as should have the use and enjoyment of the homestead, to pay taxes, etc., during their occupation, after the death of the widow, and to assist them in supporting themselves in the homestead, the testator creates and places in the hands of trustees a fund, of which the interest alone is to go to those daughters while living there. The trust is not a simple trust, where the trustee is a mere passive depositary; but it is a special one,— one in which the machinery of a trustee is introduced for the execution of a purpose particularly pointed out, and the trustee is called upon to exert himself in the execution of the settler's intention. Lewin, Trusts, 21; Cooper v. Cooper, 36 N. J. Eq. 121. To hand over to the cestuis que trust in this case the $5,000 would defeat the testator's purpose. To effectuate his intention, the fund must be invested and the interest paid over annually. Again, it is urged that the gift of the income of the fund is unlimited, and that therefore Catharine, Elizabeth, and Hannah are entitled to the fund itself. But, as has already been said, the gift is not unlimited, but is to terminate with the use and enjoyment of the homestead of the beneficiaries.
By the fifth section of the will it is provided as follows:
"And when said homestead shall be no longer used or occupied as aforesaid by either or any of my beloved daughters above named, then I give and devise the same to such child or children at that time living, and their heirs and assigns, forever; and the representatives of any deceased child to have the share of his or her parent."
Catharine, Elizabeth, and Hannah insist that the gift is to them, and that it is vested. The testator, by the expression "child or children," referred to all of his children, and the word "such" was not used in the sense of "said" or "before mentioned," but with reference to the subsequent qualification of survivorship. What he meant was to give the property to those of his children who should be alive at the termination of the use and enjoyment of the homestead by Catharine, Elizabeth, and Hannah, and the issue of those of his children who should then be dead, such issue to take per stirpes. Had he intended to give the property to Catharine, Elizabeth, and Hannah alone, he would most probably have done so by devising it to them expressly, subject to their use and enjoyment of it as a home; and he would have said "to such of my said three daughters," etc., and not "to such child or children," etc. It is also urged that the remainder is vested; that, although it would otherwise be held to be contingent, the presence of the word "assigns" makes it a vested remainder. The gift is to those of the children who shall be alive at the time when the use and enjoyment by Catharine, Elizabeth, and Hannah shall cease, and to the issue of those who shall then have died. The words "and assigns" were used to indicate the absolute character of the estate, a fee, which the remainder-men are to take. They have no significance beyond that. Williams, Real Prop. 121; Walton's Estate, 8 De Gex, M. & G. 173. They were entirely unnecessary. The estate is a contingent estate.
By the sixth section the testator directs that any balance that may remain of the general income, rents, interest, and profits of his estate, not previously disposed of in the will, be invested. The balance here mentioned is that which will remain after payment of the annuity of $800 to the widow. At her death that annuity ceases, and then the $5,000 are to be invested; but all the rest of the estate, except the homestead and furniture, will be at once distributable according to law.
Catharine, Elizabeth, and Hannah insist that the gift of the use of the furniture to them is unlimited, and therefore absolute. The gift is not unlimited. The bequest of the use of the furniture is expressly to provide a home for them in the homestead. If, at the death of the widow, they be all dead or all married, the provision will not take effect at all. Whenever their use of the homestead shall cease, their right to the furniture will be at an end. The homestead and the furniture are given together for the same purpose.
The question is submitted to the decision of the court whether the widow is not entitled to dower and to the $200 exemption. It is quite clear that both of those claims are inconsistent with the provisions of the will. The testator orders that all his property, of every kind, shall remain as it is; that his widow shall have the use of the homestead and furniture for life, and an annuity of $800 also for life, out of the rents, interest, issues, and profits of all the rest of his estate; and directs that the surplus of interest, etc., over her annuity, be invested for the benefit and increase of his estate. Besides the homestead, he owned real estate' in Newton and real estate in Jersey City. The rents and profits of those properties are by the will, with the rest of his estate except the homestead and furniture, charged with her annuity. She was put to her election between the provision made for her by the will and her dower. Colgate's Ex'r v. Colgate, 23 N. J. Eq. 372. The claim for the $200 exemption is, as will have been seen, in conflict with the provisions of the will. It therefore cannot be allowed. Revision, 763, § 53.
The question whether the right of occupation given to Catherine, Elizabeth, and Hannah is personal, or whether they may rent the property, is also presented for decision. Whether the donee of the use and occupancy of a house is confined to a personal use, so that he is debarred from letting the property during the continuance of his interest, is a question of intention. If it appears from the terms of the gift, or the context of the will, that a personal use only was intended, the enjoyment of the gift will be confined accordingly. Ingersoll v. Ingersoll, 36 N. J. Eq. 127; Maclaren v. Stainton, 4 Jur. (N. S.) 199; Stone v. Parker, 29 Law J. Ch. 874; Kingman v. Kingman, 121 Mass. 249; Maeck v. Nason, 21 Vt. 115. In Ingersoll v. Ingersoll the devise was of the privilege of occupying so much of the house in which the testator then lived as the donee might need during the time she should remain his widow. It was held that her use was to be personal. And it was so held in Maeck v. Nason, where the testator gave his daughter the right to live and remain in his house so long as she should remain unmarried. In the case under adjudication the gift was expressly for a home for thedonees. This implies a personal use. The three daughters, or such of them as shall use the homestead, will be liable to pay the taxes, and to bear the other burdens which the law devolves upon life-tenants of real property.
NOTE.
Where a bequest is made to a wife in lieu of her dower, which she may elect to take or not take under the will, she cannot take under the will and claim anything else which is not bequeathed, in addition thereto. Smith's Appeal, (Mich.) 27 N. W. Rep. 81.
In Snyder v. Miller, (Iowa,) 25 N. W. Rep. 240, S., by will, disposed of all of his property, both real and personal; by the second paragraph, devising certain property to his wife; by the third, fourth, and fifth paragraphs, providing for specific legacies to certain parties named; by the sixth paragraph, disposing of the residue of his estate to certain parties named; and, by the seventh paragraph, directing his executor to sell all real estate not otherwise disposed of and to collect all judgments and mortgages, and distribute the proceeds as directed in the sixth paragraph of said will. It was held that the provision in the will for the wife was intended to be in lieu of her dower or distributive share of the estate, and that she was not entitled to take under the will and also claim one-third of the estate not devised to her. The court say: "It is said in Clark v. Griffith, 4 Iowa, 405, 'unless a devise to the wife, to be ascertained either from express words or by necessary implication, is intended to be in lieu of dower, she will not be compelled to elect which she will take, but will be entitled to both. If it is left in doubt whether it was the testator's intention that she should take the devise in addition to the dower, she will not be put to her election.' And see, also, Church v. Bull, 2 Denio. 430; Adsit v. Adsit, 2 Johns. Ch. 448; and Smith v. Kniskern, 4 Johns. Ch. 9. There have been quite a number of cases in this court, in addition to these above cited, where the court has been called upon to determine whether, under a will, a wife is entitled to take both dower and the provision made for her in the will. See Cain v. Cain, 23 Iowa, 37; Metteer v. Wiley, 34 Iowa, 214: Watrous v. Winn, 37 Iowa, 72; Van Guilder v. Justice, (Iowa,) 10 N. W. Rep. 238. In these, and probably other, cases which might be cited, this court has followed the rule above announced."
In the case of Van Guilder v. Justice, (Iowa,) 10 N. W. Rep. 238, a testate died seized of 120 acres of land. By will he devised 40 acres to his wile, absolutely free from all claims. The remaining lands were to be held and controlled by her in trust during the minority of three children, named; the proceeds arising from their cultivation to be appropriated for equal benefit of such minor children, each of wdiom he desired to have an equal share in the property when they arrived at their majority. The court held that the widow was not entitled, in addition to the 40 acres specifically devised, to a distributive share of the remaining land.
In the case of Estate of Gotzian, (Minn.) 24 N. W. Rep. 920, the supreme court of Minnesota say that since the repeal of chapter 48, Gen. St. 1866, by chapter 40, Laws 1875, the common-law rule in respect to the doctrine of election by a widow between her distributive share of the realty of a deceased testator and a provision made for her in his will, has been in force and is applicable in that state, and that the widow is entitled to both the provision in the will and her distributive share, unless a contrary intention is manifested by the will; that this intention may appear by express words, or it may be implied from the frame of the will, or particular clauses of donation. The court say that there is no question that, at common law, "she cannot be put to an election between her paramount right of dower and a devise or bequest of something else, unless the right of dower be inconsistent with or repugnant to the provisions of the will, so as to disturb or disappoint them. 3 Kent, *58; Story, Eq. g 1088; Reynolds v. Torin, 1 Russ. 133."