Opinion
06-22-1893
GASTON et al. v. BROKAW et al.
Hugh K. Gaston, for complainants. H. C. Suydam, for defendants.
Bill by Hugh K. Gaston and another, as executors of the will of Isaac A. Brokaw, for the construction of such will, to which Charles R. Brokaw and others filed an answer.
Hugh K. Gaston, for complainants.
H. C. Suydam, for defendants.
BIRD, V. C. The bill in this case is filed to procure a construction of the will of Isaac A. Brokaw, with respect to the disposition of his farm, mentioned in said will. The third clause of his will reads as follows: "I give and devise to my executors hereinafter named, and to the survivor of them, my farm whereon my son Charles now resides, situate in Franklin township aforesaid, and containing about fifty-nine acres, in trust to hold the same for the use, occupation, and enjoyment of my son Charles, his wife and children, during his natural life, and at his death the same to go to his children, their heirs and assigns, forever." He then divides ids estate into three parcels. In making up the sum total he charges his son Charles with the value of the farm so devised at $5,000, directing his executors to apply this in making up Charles' portion, or one-third of his estate. In the ninth clause of his will he directs as follows: "The interest and income arising from the remaining third part, in which portion is to be counted my said farm, at the valuation of five thousand dollars aforesaid, I order and direct my executors hereinafter named, in their discretion, to pay the same, as it is collected, either to my son Charles, or to his wife, or to any of his children, as they, my said executors, in their good judgment, may deem best; my intention being that the interest and income arising from this part of my estate shall be used and applied for the maintenance and support of my said son Charles and his family, and in no way subject to the control of any present or future creditor either of my said son Charles, or of any of his family; hereby giving my said executors, and the survivor of them, full power and authority to carry out my intention in this regard as in their judgment they may deem best. I further direct my said executors to pay for all necessary repairs on my said farm, during the lifetime of my said son, out of the interest and income accruing on this third part of said residue, and to charge my son Charles with the same." The complainants, two of the executors named in the will, (the third having renounced,) show to the court, by their bill, that they are uncertain as to the intention of the testator with respect to their duties in the management of the said farm. While they have the impression, from the language of the ninth clause of the will, that they are to retain and maintain the possession of the farm given to them for the use, occupation, and enjoyment of Charles, by the third clause, they say that Charles claims the right to use, occupy, and possess the farm in person, without let or hindrance from them; and Charles, in his answer, does make this claim. The complainants say that their doubts are increased because of the language of the ninth section, and that also the language of that has a tendency to castupon them the burden of taking the possession of, and managing and controlling, the said farm. This, they contend, arises from that clause of the ninth section which says that the interest and income arising from the remaining third part, "in which part is to be counted my said farm at the valuation of five thousand dollars," and also the direction therein to pay the interest and income to Charles, or to his wife, or to their children, as they deem best for the maintenance of him and his family, together, also, with the direction to repair the said premises, and to pay therefor out of the interest of his third part, and to charge him with the same.
The very well settled rule requires that in giving construction to wills, and in declaring the intention of the testators, every part of the will must be allowed to stand, and its full force must prevail, if it be possible. This rule would be violated iu case the contention of the executors to the effect that under the two clauses of the will referred to, when construed together, they are to take the actual possession of the farm. While it is true they might take the actual possession of it, and rent the same to Charles, yet there is nothing in the will that would impose upon them any such duty or obligation, for there is no part or the will which in any wise suggests that they are not to permit him to use, occupy, and enjoy the same, or the rents, issues, and profits thereof; but the ninth section expressly declares that they shall pay to him, to his wife, or to their children, the income thereof, for their maintenance, which, if it has any other signification than that he may take the income thereof because he is in the occupancy and enjoyment thereof, may clearly be construed to signify the right and power in them to rent to any other person. This, to my mind, would render the phrase, "use, occupation, and enjoyment by my son Charles," absolutely nugatory. For this I perceive no necessity. Nor do I find any incongruity in the two clauses. In my judgment the testator intended that his son should have the enjoyment of the possession of the said property, not only for the benefit of himself, but of his wife and children, during his lifetime, and, after his death, then the title should be absolutely vested in his children, but to that end that title, and, if necessary to that purpose, such dominion, should vest in the trustees as would enable them to carry out the intention of the testator for the benefit of the wife and children of his son Charles. This very clearly preserves the title in the trustees. In other words, it is an active trust, and especially so when it is considered that they are charged with keeping up the repairs of the premises. I think the language used by the suprmee court in the case of Hance v. West, 32 N. J. Law, 233, when speaking of the application of the word "use," may be applied to this case, so far as the interests of Charles are concerned; and that this is an active trust, and that the legal title evidently remains in the trustees during the lifetime of Charles, I think, is clearly established by the statutes. This view sustains every part of the will, and in no manner abridges the powers or duties which the testator intended to confer upon the trustees. They still have the right to see to it that Charles and his wife and children enjoy the rents and profits of the farm, and to apply the income to the preservation of the premises, in all respects. These things may all be done by Charles, and if so the intention of the testator will have been met. If not, the duty of the trustees will then be plain.