Opinion
11-07-1903
KIDDER'S EX'RS v. KIDDER et al.
Howard W. Hayes, for complainants. J. E. Howell, for infant defendants.
Bill for construction of the will of William M. Kidder, deceased, by the executor and executrix of the will against Amos M. Kidder and others. Heard on bill, answer, replication, and proofs. Will construed.
Howard W. Hayes, for complainants.
J. E. Howell, for infant defendants.
EMERY, V. C. This bill is filed by the executor and executrix for the construction of the will of William M. Kidder, and directions (among other things) as to the disposition of the personal estate in their hands. The will is a short one, and its entire provisions are as follows:
"First. After my lawful debts are paid I give and bequeath to my wife Emily Bliss Kidder all my property both real and personal, wherever located and of whatever character, including all stocks, bonds and other investments, to hold and dispose of as she may think best for the welfare of herself and our children.
"I suggest that Delos Bliss Kidder be given at his majority whatever sum in securities or money is necessary to make his propertyequal to Mansfield's at his majority, and if there should be further issue, the same rule to apply.
"I hereby appoint Edwin M. Buckley, of Rutherford, N. J., and Emily Bliss Kidder, of Highwood, N. J., to be executors of this my last will and testament, hereby revoking all former wills by me made."
The will was executed on December G, 1895, and at that time the testator had two children—Amos Mansfield Kidder, born March 23, 1892, and Delos Kidder, born July 25, 1891. A third child, Margaret Emily, was born September 18, 1898, after the execution of the will, and before testator's death on May 16, 1902, without having altered or revoked his will. The estate has been settled by the executors, who have in hand over $500,000 of personal estate for distribution. The value of the real estate of which testator died seised is said to be about $15,000. The executors as such are not charged with any trust or power whatever as to the real estate, and as to the respective interests of Mrs. Kidder and her children, or any of them, in the real estate, no direction can be made on this bill. I have considered this question in two cases: Robeson v. Shotwell, 55 N. J. Eq. 318, 328, 36 Atl. 780, affirmed on appeal, Howell v. Same, 55 N. J. Eq. 824, 41 Atl. 1115; Baldwin v. Tucker, 61 N. J. Eq. 412, 414, 48 Atl. 547, affirmed on appeal (1901) 64 N. J. Eq. 333, 55 Atl. 1132. Mrs. Kidder has been appointed guardian for each of her three children, and as to the disposition of the personal estate in their hands the first question is whether it is to be entirely paid over to Mrs. Kidder as the legatee, under the first paragraph of the will, or whether any portion of it is to be paid over to her as the guardian of her children, or any of them. So far as relates to the two children living at the date of the will, there can be no question, I think, that their rights in the personal estate, if they have any, are as cestuis que trustent or beneficiaries in the fund or estate after it has been paid over to their mother. There is no direct or immediate gift to any of the children of the fund itself, or of any portion of it, and there is a direct gift to the mother. So far, therefore, as the children, other than the one born after the will, are concerned, it is clear that the fund must be paid over by the executors to Mrs. Kidder. As to the child born after the execution of the will, the twenty-first section of the statute of wills (Gen. St. p. 3760, par. 19) applies. This provides "that, if a testator having a child or children born at the time of making and publishing his last will and testament, shall at his death leave a child or children born after the making and publishing of his said last will and testament, * * * the child or children so after born, * * * if neither provided for by settlement nor disinherited by the said testator, shall succeed to the same portion of the father's estate, as such child or children * * * would have been entitled to, if the father had died intestate," etc. It has been decided that a provision in the will itself for the after-born child is a provision by "settlement" under this statute. Stevens v. Shippen (Runyon, Ch., 1877) 28 N. J. Eq. 487, 535, affirmed on appeal, 29 N. J. Eq. 602. The after-born child is in this case included within the class "our children," who are mentioned in the Sift. It is so included because of the natural and legal import of the words defining the class, and the will in this respect speaks from the time of the testator's death. The testator also indicates specially that he meant to include after-born children in this description of "our children" by the direction or suggestion in the paragraph following as to the payment of sums to the children as they reached their majority. He there specially directs that the rule as to these payments is to apply "if there should be further issue."
The after-born daughter being, therefore, included with her brothers in the benefit, if any, of the provision for all of testator's children, the next question is whether any provision or settlement is in fact made for the children by the will. This involves the main question argued—whether the gift to the wife is absolute and unqualified, or whether the personal property, when received by her, is subject to a trust for the children. I think that it is subject to such trust. This arises from the fact that the direction of the testator as to the use of the property by the wife is part and parcel of the very terms of the gift itself, and is a limitation of the gift. "I give to my wife all my property" (after debts are paid), "to hold or dispose of as she may think best for the welfare of herself and our children," is the form and extent of the gift, and in this form "the welfare of herself and our children" qualifies and limits the gift itself, expressly declaring the purpose of her holding and disposing of the property. And although the provision that she may do this as she may think best for that purpose may give large discretionary powers in the exercise of the trust, the discretion given does not, by construction, destroy the trust, and the property is to be held and disposed of by her for this purpose, subject to an inquiry by the court, in a proper case, as to whether the discretion has been reasonably and honestly exercised. Costabadie v. Costa badie (Wigram, V. C, 1847) 6 Hare, 410 (31 Eng. Ch.). The children are the beneficiaries to some extent of this trust imposed on his wife by the testator in his gift to her of the property, and are therefore provided for. As to just what their rights are against the trustee—whether the equitable estates or interests given to them are joint interests with their mother, or whether the mother's estate is for life, with remainder to the children—are matters which are not now involved, and as to which no decision at this time is necessary or could be binding. The onlydirection to which the executors are now entitled is in reference to the distribution under the will, and to be instructed whether to pay the whole residue of personal estate to Mrs. Kidder, as the legatee under the will, or whether a portion of it should be paid to her in the capacity of guardian for the after-born child, as one not provided for by the will. No direction can now be given to the executors as to the precise nature of this trust imposed on the legatee, but that must be reserved for future direction, when circumstances require. The fact that the legatee is one of the executors will not entitle her to directions as to her rights as trustee. On her own application such direction could not probably be made, except on a bill admitting a trust and praying instructions or directions. In the present bill the principal inquiry of the executors is whether there is any trust whatever attached to the legacy to one of them, and the only reason this inquiry can be answered in their suit is because of the existence of the after-born child. This requires a decision whether the child has been provided for under the will, and involves the question whether it is a beneficiary under the gift to the widow. But the court should not proceed in the present bill to adjudicate upon or decide, as against the children, the extent or character of the trust estate. The general rule is that the jurisdiction of the court to direct trustees will only be exercised so far as actually needed for existing emergencies, and will not be extended to giving directions as to his duty in future contingencies. 27 A. & E. Encyl. 152; Bullard v. Chandler (1889) 149 Mass. 532, 538, 21 N. E. 951, 5 L. R. A. 104. Directions given as to future interests in trust estates, where not necessarily given, as involved in the issues in the case, have been held not binding against those subsequently claiming the estates or interests when they arise. Ashurst v. Lippincott (Err. & App. 1898) 56 N. J. Eq. 840, 42 Atl. 1917; Tuttle v. Wool worth (1901) 62 N. J. Eq. 532, 535, 50 Atl. 445. In the latter case I held also (page 534, 62 N. J. Eq., page 446, 50 Atl.) that directions should not be given to an executor as to the disposition of proceeds of sale of real estate until the sale was made, and the persons then entitled to or claiming the fund were in court.
In every one of the New Jersey cases referred to the question as to the absolute or qualified nature of the widow's estate arose after the widow had received the estate, and on claims made by persons setting up trusts or qualified interest against her, or those claiming under her, in the property she had received from her husband. In Ward v. Peloubet (Williamson, Ch., 1855) 10 N. J. Eq. 304, the widow took possession of the testator's estate, disposed of it by her will, and the dispute was between the claimants under her will and under her husband's. Van Duyne v. Van Duyne (1802) 14 N. J. Eq. 397, was a bill to establish a trust in lands after the death of the first devisee, who took possession. In Cox v. Wills (Pitney, V. C, 1891) 49 N. J. Eq. 130, 22 Atl. 794, the widow took the estate of the husband, bequeathed it, and her executors filed bill to settle the dispute between the husband's legatees and the wife's, who each claimed the fund after the wife's death. In Eberhardt v. Perolin (Err. & App. 1892) 49 N. J. Eq. 570, 25 Atl. 510, the dispute arose after the death of the wife, and was between the claimant under the will and a claimant under the widow. 1 have not been referred to any case in our decisions where a direction in advance as to the extent of the trust estates has been given.
The executors will therefore be directed to pay the residue of the personal estate to Mrs. Kidder, to be held and disposed of by her under the trusts, as declared by the testator's will, for the welfare of herself and their children.