Case v. Towle and others.

The fund when it came to her hands was $9114 78, and the legacy of $500 was paid out of it to John H. Abeel when he becam of age in 1832.

Up to this time there had been no increase in the allowance to Mrs. Howell, but she had received her annuity of $100 from the testator's death. She was maintained after this until her death in the summer of 1843, by Towle and wife.

On the 5th of October, 1838, Mr. Case and his daughter Mary J. filed the bill in this cause, to have the remaining fund ascertained and secured. Mrs. Case had died prior to that date, and her daughter and only child died while the suit was pending.

The cause came on before Assistant Vice-Chancellor Hoffman, who on the 23d day of December, 1841, made a decree to the effect that Mr. Case and his daughter, and Mrs. Weeks were entitled respectively to one-fourth of the fund subject to the charges upon it, and directing Towle and wife to bring those two-fourth parts into court. The decree also directed a reference to inquire whether Mrs. Howell since January 1, 1831, had been entitled to an increase of her annuity, and if so to what extent; and what amount Towle and wife had paid to or expended for her.

On the reference, Towle and wife claimed that Mrs. Howell was entitled to a large increase of the allowance in her declining years, and offered to prove that they had actually and necessa rily paid to and expended for her support from 1830 till her death, more than the whole fund which Mrs. Towle received as administratrix, both principal and interest.

On the other hand, it was insisted that the administratrix had no power to increase Mrs. Howell's allowance, that the executor had restricted its utmost extent to the income of the fund in question, and that it was in effect limited to that income by the interlocutory decree.

The master thereupon by consent, made a special report asking the direction of the court, before going into the mass of testimony in regard to the actual support of Mrs. Howell.

Some other facts will be found stated in the opinion of the

court.

J. L. Mason, for the complainant.

Case v. Towle and others.

N. D. Ellingwood, for Towle and wife.

THE ASSISTANT VICE-CHANCELLOR.-The question presented by the special report of the master, was decided by my predecessor when this cause was before him in October, 1841.

His opinion then pronounced, was clear and emphatic, that in no event could the administratrix de bonis non, or even the original executor, encroach upon the capital of the reserved fund of $10,000, in order to enhance the yearly allowance to Mrs. Howell.

The decree which was thereupon entered, it is true, does not in express terms limit the master to the income of that fund, in his allowance for Mrs. Howell's support. But I think the provisions of the decree which require Mr. Towle to bring into court the two equal fourth parts of the capital of the fund, for the shares of the complainant and R. D. Weeks, and the positive adjudication that the complainant is entitled to the one-fourth part of the capital; are incompatible with the master's going beyond the income in his inquiry as to the proper extent of the allowance to the annuitant.

Such being the decision, and in my view, the decree, of my learned predecessor, I ought not to direct otherwise, unless upon a very strong conviction that he erred in his conclusion.

But I have no doubt of the correctness of his judgment upon this point.

The testator had a very moderate conception of the necessary extent of his bounty to Mrs. Howell. He fixed it in the first in stance at $100 a year, and the payment of that amount was purely discretionary with his executors. He authorized them to increase the yearly income to her, in case they should deem the increase expedient and necessary. Thus the whole thing rested in the discretion of the executors and the survivor of them.

In May, 1823, Mrs. Weeks became entitled to receive her portion of the estate, and the surviving executor proceeded to make a distribution accordingly. He had the experience of nearly twelve years administration of the estate, to guide him in his estimate for the future, and if I correctly understand the fact, he had not to that period, increased Mrs. Howell's annuity beyond $100, and

Case v. Towle and others.

did not increase it while he lived. He then in the exercise of his judgment and discretion, set apart the sum of $10,000 in order to provide for the yearly payment to Mrs. Howell, the support of her son until he should attain his full age, and the payment of his legacy of $500.

It was clearly his design to provide a sum, the income of which would defray the annual charges thus payable.

The annuity of Mrs. Howell, and the support of her son, were charges which would recur yearly. The latter would continue about nine years, if he survived; and the former for an indefinite period, dependent upon the duration of Mrs. Howell's life; and which in fact continued for twenty years. No gross sum could have been set apart for these objects, with either safety or propriety. The executor's subsequent management of the fund confirms this view of his intent. According to his account as passed by the master in Case v. Abeel, the fund of $10,000 remained unimpaired for five years after it was thus set apart; and it was but slightly impaired while he retained it, and for aught that appears, the portion used was for general charges of the estate, which the Chancellor imposed upon it by his order dated April 9th, 1829. From a cursory examination of that account, I imagine that if no charges had been brought against the fund between 1823 and 1832, except the support of the son and the annuity of $100 to the mother, there would have been a surplus in 1832, sufficient to have paid the legacy of $500 to the son, and leaving the fund of $10,000 entire. The executor foresaw that in February, 1832, John H. Abeel would cease to draw upon the income for his support; and that he could diminish the capital only $500; and the executor doubtless judged, that the income of the remaining capital, would in 1832 be more than Mrs. Howell could reasonably require, and the aggregate income after that period would suffice for any possible contingency in her support, for which the testator intended to provide.

It appears that the capital of the fund which remained after the payment of her son's legacy according to the executor's account, was $8614 78. This sum at six per cent. would yield for her support five times as much as the testator designated in his will; and it cannot be doubted but the provision thus made by

Case v. Towle and others.

the executor in 1823, was a wise and provident exercise of the discretion reposed in him by the testator, and ample for any reasonable increase of Mrs. Howell's annuity.

I think it was, as to the utmost latitude of the allowance to her, a conclusive exercise of the executor's discretion; but I need not so decide.

The Chancellor, when this estate was before him in 1829, (Case v. Abeel, 1 Paige, 393, 403,) evidently regarded the $10,000 as a capital sum, the income of which was to be appropriated to Mrs. Howell and her son, so far as was necessary, and the principal to be divided among the residuary legatees of the estate.

The petition of Mr. and Mrs. Towle to the Chancellor in 1831, in which Mrs. Howell expressly concurred in writing, is a recognition of the act of the executor in setting apart the $10,000 as a capital sum, which under the circumstances ought to be deemed conclusive upon them. They speak of Mrs. Weeks's one-fourth part of that fund, as being yet unpaid to her; they allege that the annuity of $100 is insufficient for the support of Mrs. Howell, and they pray for a reference to ascertain how much she shall receive yearly in future for her support, and they also ask for a suitable allowance for past expenditures.

The Chancellor made an order of reference accordingly, which was never prosecuted by the petitioners or by Mrs. Howell.

They chose to rely upon the exercise of Mrs. Towle's discretion as administratrix in regard to the extent of the yearly allowance, in preference to obtaining the judgment and sanction of this court. Whether Mrs. Towle could exercise any discretion on the subject, I need not say. I am clear that she could not trench upon the limit which the executor had imposed in the income allotted for this object, and which she as well as her husband and mother, had recognized and virtually adopted in their application to the Chancellor. And certainly, their omission to proceed under the order of reference, was an acquiescence in that limitation, which they ought not at this day to be permitted to retract.

These considerations induce me to concur fully in the conclusion of Assistant Vice-Chancellor Hoffman. The master will therefore be advised that he is not to allow to Mr. and Mrs. Towle

Mason v. Mason's Executors.

any amount for Mrs. Howell's support, beyond the yearly income of the fund in question while she lived.

JAMES MASON v. JOHN MASON'S Executors and others.

A testator having three sons and four daughters living, and six grandchildren the issue of a deceased daughter and of her husband, G., by his will gave to three of his daughters each one-fourth of his real and personal estate absolutely, and another fourth to G. and his children; and then devised and bequeathed the remaining half of his estate to his executors, in trust to rent, invest and improve the same, and receive and collect the rents and income, and out of the income, to pay yearly annuities, (unequal in amount, but each considerably less than oneeighth of the income,) to each of his three sons, J., H. and M. and to his daughter H. A. The latter was to cease on her surviving her husband, and she was then to take one-fourth of the half absola ely; and if her husband survived her, her annuity was to continue to him for life, and the eighth of the estate subject to that annuity, was to vest in her issue by representation. On the death of the sons J. or H. leaving a widow, she was to have the annuity of her husband, during her life. The trustees were clothed with a discretionary power to increase the annuities of the respective sons, and the daughter H. A., during their lives. If the net income of the trust fund exceeded the annuities, the surplus as to three-fourths accruing after a month from the testator's death, was to accumulate equally for the benefit of the issue of J., H., and H. A. respectively during their minorities, and to be paid to them respectively at twenty-one. So long as either of those three were without issue, the surplus of the income of their trust shares, after satisfying the annuities to them or the husband or widows, as the case might be ; was to be paid to the three other daughters, and to the issue of H. A., to G., and to the issue of H. and J., if either had any; all taking per stirpes. On the death of M., who it was supposed would never have issue, the testator gave one-fourth of the trust fund, to the same devisees as last above expressed; and the surplus income of that fourth while he lived, was to go to the same persons and classes.

On the death of J. and H. respectively, other two fourth parts of the trust fund were given to their respective issue, subject to the respective annuities to their widows. But if either of those sons left no issue, the respective fourth parts, subject to the widow's annuities, were given to the three daughters first named, to G. or his issue, to H. A. or her issue, and to the issue of either J. or H. if any there were; all bestowed per stirpes.

Held, on the construction of the will, that the devise in trust of the half of the estate, was to be construed and taken as a devise of separate and distinct shares, each consisting of one-fourth part of such half, on distinct trusts in respect of each; and that the power of alienation was not suspended as to any portion of the es