Opinion
(June Term, 1851.)
1. A testatrix devised as follows: "I give and bequeath to my brother J, the other half of my estate, in trust for the benefit, maintenance and support of my daughter A, provided she becomes a widow and has not sufficiency for her support, during her life, and, at the time of her death (or should her situation require it) to be equally divided between the children of my daughter Ann Steptoe, then alive, or their issue, and should either of them die without issue, then their part to be equally divided between the survivors or their issue.
2. Held, that, there being no direction for an accumulation, the profits, accruing during the coverture of A, belong to the next of kin of the testatrix.
CAUSE transmitted to the Supreme Court from the Court of Equity of HALIFAX, at Spring Term, 1851.
Bragg for the plaintiff.
B. F. Moore for the defendant.
From the pleadings, the facts, so far as they relate to this bill, appeared to be these:
Eliza Nelms, by her will, devised as follows: "Secondly, I give to my brother, James W. Cotton, the following property in trust for the benefit, and support, and maintenance of my daughter, Ann W. Steptoe, during her life; at her death to be given to her children, then alive, or their issue, and should either of them die without issue, their part to be equally divided between the survivors or their issue." (Here the property is described.) "Thirdly, I give and bequeath to my said brother, James W. Cotton, the other half of my estate, in trust for the benefit, maintenance, and support of my daughter, Adeline Harvey, provided she becomes a widow, and has not a sufficiency for her support during her life, and at the time of her death (or should her situation require it), to be equally divided between the children of my daughter, Ann Steptoe, then alive, or their issue; (183) and should either of them die without issue, then their part equally divided between the survivors of their issue."
The bill which was filed by Adeline Harvey and her husband against the trustee, the executor of Eliza Nelms and Ann W. Steptoe and her children, claimed that the profits of the property devised in the third clause, accruing during the coverture of the said Adeline, were undisposed of, and should be divided by the trustee or executor, between the next of kin of the said Eliza, who were the said Adeline and the defendant, Ann W. Steptoe. The defendants, Ann and her children, insisted in their answer, that such profits would, at the death of Ann, go, in the same manner as the principal, to those of them who would be then entitled under the will to the principal.
What disposition is made of the profits of this half of the estate, until Mrs. Harvey becomes a widow? Is the fund to be increased by accumulation? Are the children of Mrs. Steptoe, now living, to have the profits? or are the profits undisposed of — "casus omissus?" There is no direction for an accumulation, and nothing from which it can be implied. The children of Mrs. Steptoe, who may be living at the death of Mrs. Harvey, are then to take the principal fund; but there is nothing to show, that the children, now living, are to take the profits. We are, therefore, forced to the conclusion, that the profits are undisposed of, and, of course, belong to the next of kin of the testatrix. It must be declared to be the opinion of this Court, that the plaintiffs are entitled to one-half of the said profits, until Mrs. Harvey becomes a widow or dies.
It may be, that, if she "becomes a widow and has not a sufficiency for her support," she may be entitled to call for all of the profits (184) or the one-half of the estate. That depends upon circumstances, and is not now before us.
PER CURIAM. Decree accordingly.