Opinion
07-14-1890
JUSTICE v. JUSTICE et al.
A. H. Swackhamer, for complainant. R. S. Clymer, for defendants.
A. H. Swackhamer, for complainant. R. S. Clymer, for defendants.
The question involved in this case, and which I will decide, was brought to the front by the consent of the parties during the discussion of another, which arose upon the filing of a petition by the complainant asking that the defendant might be punished as for a contempt in not paying certain moneys in his hands, which he held as executor in discharge of a legacy. Upon a former occasion the court decided that a certain legacy given to the widow of Nicholas Justice was preferred to the other legacy given in the same will. It appears by the account of the executor that he has not and will not have sufficient moneys in hand to discharge this legacy, having in all less than $200. The will, after making certain dispositions of other personal estate, gives to the widow of the testator $200 each year during her widowhood, in these words: "I give to my beloved wife, aforesaid, the sum of two hundred dollars per annum, to be paid to her by my executoreach and every year after my decease, as long as she remains my widow, and no longer." After making other bequests, he disposed of the residuum of his estate as follows: "I give and bequeath and devise to my son Charles W. Justice the residue of my estate, both personal and real, to him, his heirs and assigns, forever; subject, however, to the annuity of two hundred dollars a year, to be paid to my beloved wife as aforesaid in semi-annual payments during her widowhood; and I do order a sum sufficient for this purpose to be properly secured by bond and mortgage on unincumbered real estate, the said sum of two hundred dollars a year being one and the same that I have bequeathed to her in the third item of this will." The complainant insists that she is entitled to the whole of the money in the hands of the executor; while the defendant, as executor, insists that it is his duty under the will to invest the money which he has in his hands, and to pay the interest thereof semi-annually to the complainant so long as she remains the widow of the testator, and to pay such principal to the person named as residuary legatee. Since there is so much attention given by the courts to the last words of a testator, the insistment of the executor may not seem unreasonable; but in this case I think the contention in favor of the widow must prevail. The testator evidently intended to give—which is as plainly as can be expressed—to his widow $200 each year. And the residuary clause in his will does not vary or limit this intention or direction, but expressly declares the gift to the residuary legatee to be subject to the gift of $200 a year to the widow, referring not only to the amount, but to the clause in the will which secured it to her. The fact that he orders a sufficient amount of the corpus of his estate to be invested for that purpose, and directs the interest thereof to be paid to her semi-annually, is no evidence of the change of intention or desire, but only confirms the assertion that this provision was made out of abundant caution. I conclude that the will cannot be properly interpreted except by holding that the widow is entitled to $200 a year, even though it exhausts all of the corpus of the estate in making the first payment, as it is admitted will be the result in this case. While the petitioner cannot prevail upon his motion that the defendant be punished for contempt, I will advise an order that the amount of money now in the hands of the executor be paid to the widow, provided counsel for defendant consent there to; but, as the pleadings in the case do not contemplate any such order, it cannot stand without such consent. Such order will be without costs.