Opinion
01-19-1914
MCLAUGHLIN et al. v. MCLAUGHLIN et al.
Treacy, Milton & Griffin, of Jersey City, for complainants.
Bill by John A. McLaughlin and another, as executors of the will of Dennis McLaughlin, deceased, against Hugh F. McLaughlin and others for construction of the will. Decree for complainants.
Treacy, Milton & Griffin, of Jersey City, for complainants.
LEWIS, V. C. Complainants in this case, as executors of the will of Dennis McLaughlin, deceased, filed a bill asking the assistance of this court in the construction of the will.
The testator died in Jersey City on June 6, 1912. His will was duly admitted to probate on June 17, 1912. The testator left him, surviving, four sons over the age of 21, and three daughters and one son under the age of 21; the testator also had another son, James McLaughlin, who predeceased him, leaving two children, namely, Hugh McLaughlin and James McLaughlin, both of whom are minors. There are three questions which the court is asked to pass upon. The first is as follows: Did the testator intend that his executors should pay for the support of his two grandchildren the sum of $1,500 annually, or $750 annually? The fifth paragraph of the will creates the gift in question, it is as follows: "Whereas, my son, James J. McLaughlin, has recently died leaving considerable property in West Hoboken and Jersey City, New Jersey, whereon I have and shall pay off for or purchase the incumbrances, 1 direct my executors to discharge any incumbrance thereon held by me and to pay off and discharge all other incumbrances on said property, and also to pay over to the widow of my son James, the sum of seven hundred and fifty dollars per annum, in monthly installments for the support, maintenance and education of each of my two grandsons, Hugh and James McLaughlin, the sons of my deceased son James; but this allowance shall cease upon the division of my residuary estate as hereinafter provided."
While the word "each" is generally defined to mean any one of any number, separately considered, yet its use in the foregoing paragraph has not that significance. The gift to the widow of the testator's son James is the sum of $750 per annum, payable in monthly installments. The use to which this sum of $750 is to be put is the "support, maintenance and education" of the two grandsons, Hugh and James McLaughlin. Again the testator, in the same paragraph, speaks of "this allowance," referring to the provision for his grandsons. The grandsons evidently are not considered by the testator individually and separately, but a specific sum, i. e., $750, is to be paid to their mother for their joint use.
The second question arises out of subdivision C, of paragraph 6 of the will, which is in the following words: "(c) To pay over out of the balance of said income unto my wife, Theresa L. McLaughlin, for her support and for the support and education of my minor children, the sum of seven thousand dollars per annum, payable monthly." The testator's wife, Theresa L. McLaughlin, predeceased him, and the question arises: Are the four minor children entitled to receive for their support and education the sum of $7,000 per annum, notwithstanding the death of their mother, or are the executors simply required to pay over to the four children four-fifths of the $7,000, or the sum of $5,000? I think that in this paragraph the beneficiaries are treated as a class, and the full amount of $7,000 may be enjoyed by those who survived. There is no evidence indicating an intention on the part of the testator to confer distinct Interests. There is no lapse in consequence caused by the death of Theresa L. McLaughlin, and the full amount should be paid to the survivors.
The third question for determination by the court is the power of the trustees to sell the stocks and bonds and other securities of the estate. There is no express power to sell given under the will, but this is not necessary, of course, under decisions which are familiar, when it is perfectly clear that the testator by the terms of his will intended that his representatives should have such power, or where a duty is imposed on them which, to perform, requires the power of sale. In either of these instances, they have the power of sale by implication.
The directions of the testator contained in the will as to the investing and reinvesting of the interest, the payment of interest on loans and the discharge of loans, and so forth, necessarily confer upon the trustees an implied power of sale. Paragraph 6, subd. A, requires the executors and trustees "to invest and reinvest the same (residue of the estate) and to collect and to receive the income therefrom." "(B) To pay out of said income all interest on mortgages, taxes, water rents, assessments, insurance and repairs upon my real estate and to pay the interest upon any loans existing at the time of my death secured by pledge of any of my personal property." "(E) At the expiration of ten years of my decease to pay for my residuaryestate the sum of ten thousand dollars to each of my grandsons, Hugh and James McLaughlin, in money or in property at a fair valuation. * * * At the expiration of ten years from my decease then to divide my residuary estate into equal shares between my wife and my children then surviving. Seven. I authorize my executors and trustee to hold as a valid investment in my estate any stocks and bonds which I may leave at the time of my decease, and I authorize them to invest from time to time my estate in any such bonds and stocks. Eight. As at the time of my death there may be considerable loans held by various parties against me secured by the collateral of my bonds and stocks, I authorize and empower my executors to continue such loans, to make other loans in the place thereof or any part thereof and to hypothecate any of the personal property of my estate as security for such loans."
The rule of law is imperative that every clause in the will shall be made to operate, and also that such a construction may be placed upon the instrument that the whole will be carried into effect. The intention of the testator would fail entirely in this will were his trustee deprived of this implied power. Even a direction that a distribution be made of money, has been held in some cases to confer an implied power of sale, and in this case the executors and trustees are required to invest, pay, and divide, which would make the execution of their duties impossible without this implied power of sale.
I conclude, therefore, that John A. McLaughlin and Dennis McLaughlin, executors of the will of Dennis McLaughlin, deceased, should pay over to the widow of the testator's son James McLaughlin the sum of $750 per annum, in monthly installments, for the support, maintenance, and education of each of the testator's grandsons, Hugh and James McLaughlin; that the said executors and trustees should pay for the support and education of the minor children of the testator the sum of $7,000 per annum, payable monthly, and that the trustees under this will have power to sell the stocks and bonds and other securities of the estate.
I shall advise a decree accordingly.