Opinion
11-12-1889
ELKINTON'S EX'R v. ELKINTON et al.
C. H. Sinnickson, for complainant.
Bill for the construction of a will. For proceedings to admit to probate, see Elkinton v. Brick, 15 Atl. Rep. 391.
C. H. Sinnickson, for complainant.
BIRD, V. C. The important question is, what is the extent of the interest which the legatees named in the following clause take? "I give and bequeath unto my daughter-in-law Susanna Elkinton, (wife of my son Joseph R. Elkinton,) and to her children by the said Joseph R. Elkinton, the one equal fourth part of all the moneys belonging to my estate, from all sources at the settlement thereof, minus the amount of moneys which the said Joseph R. Elkinton now owes me, or such amount as he may owe me at the time of my decease; and I require my executors to deduct from the said bequest herein made to her, to the said Susanna Elkinton, and to her children, as herein above, the amount of moneys which the said Joseph R. Elkinton may owe me at the time of my decease, andpay to the said Susanna Elkinton, and to her children, as herein above specified, only the balance; and I hereby give and bequeath the same to the said Susanna Elkinton, and to her said children, for the support and good of the family, the said Joseph R. Elkinton included. The said moneys, however, are not to be at the disposal of the said Joseph R. Elkinton." The testator had four daughters, and he made provision for each one, and her children, and also for the care of her husband, in precisely the language given above. In the distribution of the balance, if any, of said estate, in the hands of the executor, to whom is it his duty to pay such balance? Ought he to pay to the wife and children according to the plain language of the will, for the benefit of the family, including the husband, or to the wife alone for such purpose, or to a stranger, who shall be appointed for the purpose of administering the fund? Counsel for complainant insists that the whole fund must be paid to the wife, because the children are infants, and are incapable of taking and executing releases which will bind them, and have no guardians to take for them and to execute releases. To say that he did not intend that the children should share in the possession with their mother would be the greatest possible perversion of the simplest and most expressive words in the language. So, if words are to have their ordinary interpretation, the executor must be directed to pay said moneys to the wife and children, or to the guardians of such children as are still in their infancy. That this is the logical result is shown by the fact that the only objection presented to such payment is such infancy; for, if they had passed that disability, they would, beyond cavil, have an equal claim upon the fund with the wife, if not a stronger than she, for she, being a married woman, may be regarded as under disabilities which impair her right in case she should take as trustee. It will be seen that in every case in the above clause, when the testator speaks of giving or of paying to the daughter-in-law, he also gives and directs the payment to be made to her children. I apprehend there would be no controversy whatever as to the right of the children to take the estate in common with the mother if it were not for that portion of the above-quoted clause, which reads as follows, viz.: "I hereby give and bequeath the same to the said Susanna Elkinton, and to her said children, for the support and good of the family, the said Joseph R. Elkinton included. The said money, however, is not to be at the disposal of the said Joseph R. Elkinton." That the children would so take with the mother was settled in this court in the case of Stokes v. Tilly, 9 N. J. Eq. 130, 131; 2 Williams, Ex'rs, marg. p. 1253; Mason's Ex'rs v. M. E. Church, 27 N. J. Eq. 47; Noe's Adm'r v. Miller's Ex'rs, 31 N. J Eq. 235; 2 Kent, Coram. 350.
The weight of authority seems to be that where a bequest of personal property is made to a man and his children, and nothing more is added, the children will take the whole interest in common with their parents per capita. 2 Williams, Ex'rs, 985; De Witte v. De Witte, 11 Sim. 41; Paine v. Wagner, 12 Sim. 184; Beales v. Crisford, 13 Sim. 592; Crockett v. Crockett, 2 Phil. Ch. 558; Bustard v. Saunders, 7 Beav. 92. I am referred to the cases of Morse v. Morse, 2 Sim. 485; Ward v. Peloubet, 10 N. J. Eq. 304; Noe v. Miller, 31 N. J. Eq. 234,—as authorities in favor of the right of wife and mother to take possession of the whole fund in trust for herself, her children, and her husband during her life-time. It seems to me that these cases are so unlike the present that to follow them would be without reason. In Morse v. Morse the gift was of five thousand pounds to one daughter and her children, three thousand of which was made payable in one year and two thousand after the death of the mother. The court declared that the five thousand was to be held in trust for the daughter for life, and after her decease for all her children, whether born in the testator's life-time or after his decease. The language of the court was. "It is clear that the testator did not intend an immediate payment of the two legacies; and there would be an inconsistency with respect to them if the mother did not take life-interests, for then different classes of children would become interested in the two portions of the legacies. I must therefore put such a construction upon the bequests as will make all the children participators,—declare the legacy of £5,000 to be in trust for Mrs. Morse for her life, and after her decease for all her children." It will be perceived that the consideration which controlled the court was equality between all the children. In the case now to be decided no such inquiry is material, because no such difficulty is presented. In this case the entire fund is made payable in a single payment, and the mother and children, to whom the payment is directed to be made, take the fund, not for themselves alone, but for the whole family, including the husband and father, which, it seems to me, of necessity embraces as well children born after as before the death of the testator, or the death of the father. If the mother and children thus take each an equal interest, do they take absolutely, or do they take with the burden of a trust? If such trust be imposed by the terms of the will, it evidently includes all the members of the family, as well as the father. If this be so, then each one takes for the benefit of all the rest, and would be under obligations to hold the principal for "the support and good of the family" so long as the family continues to exist as such, including the husband. Although the phrase "for the support and good of the family" may be considered as quite expressive, yet, when it is considered that the testator distinctly directs the money to be paid to the children without making any provision for the investment of it, or fixing any period of time during which they shall hold it, it seems very plain that he meant, bythe phrase used, such benefit as they would receive or enjoy from the use of the moneys so given to them severally. I have more difficulty in disposing of the phrase "the said Joseph E. Elkinton, included." If the testator designed that the legatees should hold the moneys given to them for the benefit of Joseph, he has also expressly declared that no part of said moneys should be paid to him, and, not having made any direction for the investment of the fund and the payment of any interest, I conclude, upon the whole, that the testator's bounty was intended simply to be extended to Joseph in such manner and to such extent only as he might receive and enjoy by being a member of a common household. In other words, I think that the phrases for "the support and good of the family" and "including the said Joseph" were used rather to express the motive for making the gift in the manner in which he did than to express the intention to create a trust. 1 Lewin, Trusts, 137, where this view is illustrated. I will advise a decree in accordance with these views.