Reference

Full Case Name

McIntosh's Estate. McIntosh's Appeal

Cited By

5 cases

Status

Published

Syllabus

Will — Decedents' estates — Widow's election. ,i Where a widow elects to tafee against a, will, her substituted devises and rbequests are a trust in her for the benefit of the disappointed claimants to the amount of their interests therein. A testator devised and bequeathed certain real estate and “ one third of all his personal property ” to his wife for life with remainder to his daughter. 1-Ie then added: ‘ ‘ The above is intended to be and to be taken in lieu and bar of all shares, or third, or dower of my said wife in my estate, real, personal or mixed.” He then gave certain other real and personal estate to his daughter, and various devises and bequests to his three sons by a former marriage. The widow elected to take against the will. Held, (t) that the word “ above ” referred merely to the gift to the widow, and that the daughter’s remainder was not intended to be barred by the widow’s election to take against the will: (2) that as to the personal estate there were no benefits intended for the widow in suspense, and consequently no fund for compensation and no disappointed legatees; (3) that as to the real estate the sons were disappointed claimants and were entitled to be compensated out of the personal estate. Trusts and trustees — Active trust — Rents. A gift of real estate to trustees, with a direction to pay the rents, after deduction of taxes and repairs, to testator’s grandsons, is an active trust. Testator gave a portion of his estate to trustees to collect the income and pay one half thereof to his grandson “ if he continues sober and industrious,” otherwise to accumulate. The other half was to lie paid to the minor children of a deceased grandson. Testator further directed: “Should these children be separated, the above means for their support shall be divided equally per capita, and in case of necessity from sickness of any of the above named heirs, or should any of the children above referred to be desirous of a collegiate or classical education, said trustees are hereby empowered to use the income of this share for defraying such expense.” When the youngest child came of age one half of the principal was to be paid to the grandson if living, and the other half to the two great-grandsons. Ileld, that the trust was an active one and must continue until the time of distribution designated by the will. Will— Children — Distribution. . A gift to “James T. McIntosh and his children” gives the children equal rights in distribution with the father, and it makes no difference that elsewhere in the will “ this share ” is referred to as that of James T. McIntosh.