1. Testator bequeathed $12,000 to his executors in trust to pay $50 monthly out of the income to a named beneficiary. Upon her death the principal of the fund, together with any balance of income, was to become part of the residuary estate. The beneficiary predeceased testator. Held, there being no gift over, the legacy lapsed when the cestui que trust predeceased testator.
2. Testator set up a number of bequests in his will, some outright and some in trust, to be paid in full without diminution. The principal of the several trusts were to become a part of the residuary estate upon the death of the respective beneficiaries, unless otherwise provided by the will. Testator then provided that after these bequests had been paid that "the following bequests be paid in full or equally pro-rated, as the case may be:". All the bequests in the first group have been paid in full; none in the second group has been paid. When the trusts provided for in the first group have been set up, the balance of the estate will be insufficient to pay the bequests in the second group in full. Complainants, as executors and trustees, seek construction of the will and a declaration of their rights and duties and of the rights of the defendants thereunder. Held, section 7 of the Chancery act of 1915 ( Cum. Supp. Comp. Stat. p. 271 § 120) contemplates that in order to be entitled to a construction of a will, a suitor must have a fixed equitable right of future enjoyment in the subject-matter of the instrument to be construed; the judgment should be binding on all the parties interested in the subject-matter; and all the parties in interest should be before the court. Since all the parties interested in the subject-matter herein are before the court, and all have joined in the prayer for construction, and all will be bound by the decree, this court will determine whether the corpus, upon the death of a life beneficiary under the several trusts set up in the first group of bequests, be distributed among the residuary legatees or among the beneficiaries named in the second group until their bequests have been paid in full.
3. The residue of an estate is what is left after the payment of all debts, legacies, expenses of administration and other proper charges and commissions.
4. The court's main concern is not so much what the testator meant to say as it is to determine what he meant by what he did say. In the light of the other provisions of the will, held, that by the expression "the following bequests be paid in full or equally prorated, as the case may be," the testator intended that the second group of bequests be paid in full before the residuary legatees took anything under the will.
5. Interest upon a legacy commences to run when payment of the legacy is demandable. Inasmuch as the corpus of the trusts included in the first group of bequests made by the testator, is to be drawn upon for payment of the legacies provided for in the second group, it necessarily follows that such payment cannot be made until the life tenancies of the first group of bequests have terminated, and therefore the legacies of the second group are not payable until that time arrives.
PER CURIAM.
We concur in the views as expressed by the learned vice-chancellor, excepting that part thereof which holds that the so-called second group of legatees are entitled to interest upon the several amounts due them from and after one year after the death of the testator. Interest upon a legacy commences to run when payment of the legacy is demandable. Ashton v. Wilkinson, 53 N.J. Eq. 227. Inasmuch as the corpus of the trusts included in the first group is to be drawn upon for the payment of legacies provided for in the second group, it necessarily follows that such payment cannot be made until the life tenancies of the first group have terminated, and therefore the legacies in the second group are not payable until that times arrives.
The decree under review will be modified to the extent that no interest will be allowed on the amounts due to the legatees named in the second group.
For reversal — PARKER, BODINE, DONGES, JJ. 3.
For Modification — THE CHIEF-JUSTICE, CASE, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 10.