Wilde v. Wilde

The intent of the testator, so far as it can be gathered from the whole will, must afford the key to the construction..

*73By the previous provisions of his will he had made exact bequests to his wife, his brother and his two children. To make the provision for his wife, and son he had provided that a sum large enough to yield the income he bequeathed to them should be taken from the bulk of his estate and invested. Ho doubt he supposed that his estate was ample to provide every dollar which he bequeathed in exact sums to the persons he named, and that there then would remain a residue to consist of two parts, one part a balance, larger or smaller, remaining after his executor had paid the legacies to his brother and daughter, and had invested the principal to raise the annuity for his widow and son, and the other part that very principal from which the annuities must be raised. His mind devoted the balance to his daughter as a still further “ token of his affection.” That balance, to his mind, would be payable immediately.

He could not tell when the other part of that residue namely, the principal sum to be set aside, would be payable.

His widow must die before one part- of it could be payable, and his son before the other.

His daughter might die long before either. It was improbable that he could name anybody then to be alive, and so he named his “ heirs at law.”

Still searching for his intent, suppose it had been asked him, in case of an insufficiency of funds to pay in full both the legatees, whom he called by name, and the “ heirs at law,” whom he could not name, which of them should be paid in full, can there be any doubt that he would have preferred the former to the latter — the known to the unknown ? This view of the testator’s intent leads to the result that the principal sum now available by the death of the widow forms part of the estate of the testator from which the legacies which were given Perry Yates and Mary Wilde should be paid.

It is interesting to notice that these legacies were directed to be paid “ as soon as convenient.” Of course the testator *74did not anticipate the shrinkage in his estate which has occurred, and this long postponement of payment. It may safely be affirmed, however, that he never contemplated such a contingency as that they should not be paid when it should become convenient.

The foregoing construction finds support in the case of Arnold agt. Arnold (2 My. & Keene, 374), a case cited with approval in 2 Roper on Legacies (1510,1511), and in Williams on Executors (6 Am. ed., 1462.)

If, after paying the unpaid balance of these legacies in full, with interest, any balance remains, it should be paid to the heirs at law.

With respect to the interest, the general rule is, that it begins to run from the date when the legacy becomes due. This is fixed by statute at one year from the granting of letters testamentary, unless the same is directed by the will to be sooner paid (2 R. S., 90, sec. 43). In this case it seems to be peculiarly just that the interest should be paid. There were not enough assets to enable the executor to set aside the principal from which to raise the annuities, and also pay the brother and daughter the legacies bequeathed to them.

The executor, with the approval of the surrogate, provided, without abatement, the principal fund for the annuities, thus compelling the brother and daughter to wait for a portion of their legacies until now. Had the deficiency been apportioned pro rata, the annuities must have been abated to some extent, and the brother and daughter, as legatees of exact sums, would have received large payments. If they are allowed interest upon what they have so long waited to receive, amends will be made for the apparent injustice done them, and the scheme of the testator will be as nearly accomplished as circumstances will permit.