Fox v. Carr

The plaintiff bases his right to recover upon the proposition that by the will of the intestate’s father, one-half of the proceeds of the real and personal property left by him was bequeathed to William E. Carr, and the title thereto vested in him absolutely, subject to the power given to the trustee to invest the same and receive the interest and pay over the same to him during his lite. The defendant on the other hand insists that by the will the intestate got a life estate only in the trust fund, and that on his death, without having designated to whom said fund should pass, it fell hito the residuum of the testator’s estate to be divided among the next of kin, and that as to to that property the testator died intestate.

*569The conclusion at which Justices RawsoN and ANGLE arrived, upon the construction of the clause by which the property in question was given to William E. Carr, seems to me to be entirely correct. The intention of the testator obviously was to give to his son William E. one-half of his real and personal property as his share of the testator’s estate, charged however, with a trust to invest the money and to receive and pay over the interest to the cestui que trust during the life of the latter. When the intention of the testator is manifest, it must have effect unless the language of the will forbids it.

So far from the will in this case forbidding such a construction it is to my mind conclusive of it. This argument is clearly stated in the brief opinion by RawsoN, J. To give a construction to the clause under consideration that would take from the widow and children of the intestate a portion of the trust fund, and give it to the defendant, who has had his full share of his father’s estate, would be most unjust to them, and could only be done in compliance with the manifest requirements of the will.

I have read over the very able brief, the defendants counsel has handed up, but fail to find any case that requires the court to give to the clause of the will in question the construction for which he contends. If we are right in holding that the bequest to the intestate vested in him, the title to the property in question subject to the trust, then the plaintiff as administrator in this State is entitled to maintain the action. (Dayton on Surrogates, 194, 195, 224, 239; Williams on Executors, 376; Chapman v. Fish, 6 Hill, 554.)

The judgment should be affirmed, with costs.

Judgment affirmed, with costs of appeal.