Eyre's Estate
Eyre's Estate
Opinion of the Court
Opinion by
In the present case, we have to deal with the distribution of income, and the question is whether the settlor intended, that in case a child died without issue, his personal representative should take the share of income which the deceased child had received.
The direction for final distribution, upon the death of the life tenants, is as follows: “ And upon and immediately after the death of the last survivor of the said children of the said Joseph K. Eyre, upon the further trust to divide and partition the whole and entire capital of the trust estate as it may then exist and be invested, after deducting all reasonable expenses and commission, into as many equal shares and purparts as there were children of the said Joseph K. Eyre, who had died before that time, leaving issue then surviving, and thereupon, by good and sufficient conveyances and assurances, to grant, convey, assign, transfer and set over in fee and absolutely one of such equal shares and purparts to the issue collectively of each of the said children of the said Joseph K. Eyre as shall have left issue then surviving as aforesaid, which conveyances and assurances shall be made to such respective issue if more than one as tenants in common, and in such way and manner that
It is clear that the principal was to go only to the issue of the children of Joseph K. Eyre. And throughout the deed, wherever we find any reference to the parties talcing the income, after the death of the settlor and his wife, they ai’e set forth as “ children and issue of deceased children.”
The appellant contends that this means children living at the death of Joseph K. Eyre, and the issue of children which were deceased at the time of his death. And that each one of the children of Joseph K. Eyre, living at the time of his death, took a vested interest in the income of the estate, for the term of the life of the last survivor of the children of Joseph K. Eyre. But this construction is inconsistent with one of the other alternatives in the deed. He provided that if his wife Anna should die during the lifetime of himself, Joseph, “then the whole of the surplus income of the trust estate as aforesaid .... shall be paid to the said children and issue in the proportions as aforesaid.” That is, to such of the children of Joseph K. Eyre as shall then be living, at the time of the distribution, which in this event was to occur in the lifetime of the settlor.
It seems obvious therefore that in using the words “ children and issue ” they were intended to apply to those in being at the time of the particular distribution of income. These periods of distribution began, not at the death of the settlor, but the first year after the execution of the deed of trust, and continued during some ten years of the lifetime of the settlor. His general intent as it appears from the deed of trust, was to provide an income for himself of |8,000 per annum during his life. During that period the remaining net income of the trust estate was to go to his wife, for her support and that of her children. In case of her death during the lifetime of the settlor the whole of the surplus income was to go to the children living at the periods of distribution of income, and the issue of such children as may have deceased.
W e conclude therefore that it was the intention of the settlor, that payments of the income only to the surviving children, and the issue of deceased children, should be continued until the death of the last survivor of the children.
The assignments of error are overruled, and the decree of the court below is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.