BACKES, V. C.
Bill by Winthrop D. Mitchell, as trustee, etc., of Matthias M. Dodd, deceased, against Adelaide Dodd and others. Decree for distribution of surplus of estate advised.
Lum, Tamblyn & Colyer, of Newark (Ralph Lum, of Newark, of counsel), for complainant.
Chester W. Fairlie, of Newark, for defendants.
BACKES, V. C. Matthias M. Dodd died testate, leaving three daughters, Elizabeth, Myra, and Adelaide. Elizabeth and Myra died, leaving children. Adelaide is a congenital defective and in charge of a caretaker, and, because of her helplessness, was her father's chief concern. By various items of his will and a codicil he gave practically one-third of his estate to his executor, in trust, to use the income for her "proper and ample support" and "comfortable and liberal support." Adelaide is now 74 years old, and her proper and ample, comfortable and liberal support requires about $4,000 a year. The principal of the trust fund is approximately $180,000, and the annual yield is over $10,000. The accumulation of income today is upwards of $100,000. The principal of the fund (except that part provided by the fifth item) is disposed of by the seventh clause of the will. The principal and accumulated income of so much of the trust as is created by the codicil is directed, upon the death of Adelaide, to "become a part of my residuary estate to be disposed of as said residuary estate is disposed of." There is no formal residuary clause to the will, and as the testator manifestly intended dying testate of all his worldly possessions, and as all the rest of his estate is specifically disposed of, and as the seventh clause of the will approximates a residuary disposition, I am constrained to look upon the language just quoted as referring to that clause. The clause reads:
Seventh. In case of the death of my daughter Adelaide, it is my will that the income of all the moneys herein directed to be paid to Winfield D. Mitchell in trust for my said daughter to be invested by him shall go and be paid to my other two daughters in equal portions, and upon the death of one the entire income and interest shall go to the survivor during her life and when both my said daughters shall have died, then the principal sum is to go to and be divided among my grandchildren then living per stirpes and not per capita—the children of any deceased grandchild, however, to receive and take equally the share to which such grandchild would have been entitled if she or he had lived until said period."
The testator evidently anticipated that Adelaide would predecease her sisters, but the failure of that contingency does not, in my opinion, affect the status of the remaindermen. The grandchildren of the testator took a contingent remainder (Teets v. Weise, 47 N. J. Law, 154), which vested in interest at the time of the death of Myra, she having survived Elizabeth, and to vest in possession, not at the death of the survivor of Elizabeth and Myra, as the testator had planned, but,as it now turns out, at the death of Adelaide. The children of then deceased grandchildren took their parent's share directly under the will, and not substitutionally. The remaindermen are ascertained and fixed. No contingency can arise whereby in the future others can be let in. The remaindermen have requested and urged the trustee to make distribution of the surplus income, and he has filed this bill for instruction.
The principal of Adelaide's trust estate, of course, cannot be disturbed. That that is to remain intact until her death is unquestioned. However, her interest in the income is delimited to this: Her trustee, to quote the language of the will, is to "use the whole or such part of the interest that shall accrue, and be payable thereon, as may be needed for that purpose, for the proper and ample support of my daughter Adelaide, during her natural life." The estate thus limited has been determined by years of actual experience. The annual income has far exceeded the annual expenditures for Adelaide's maintenance, resulting in the enormous surplus, and in this surplus she had no right or title.
It may be argued, and plausibly, that the gift over under the seventh clause above quoted is of the principal only, and that the testator died intestate as to the accumulated income. The testator, in my judgment, meant to use "principal" in the sense of all that remained should pass to the grandchildren and children of deceased grandchildren in whom the estate vested at the death of Myra. Now, while it is true that it was the testator's intent that the remaindermen should not come into possession of the principal until Adelaide's death, it does not at all follow that he intended that the enjoyment of the surplus income, in which Adelaide has no, and never had any, interest, should be postponed until her death. The testator was never so minded. The postponement of possession of the principal is, as events have arisen—the remainder being now vested—for the single purpose of letting in the life estate of Adelaide, but no such object is to be served by withholding the surplus income, and in the absence of specific direction that a gift should be withheld until the happening of a given event, the general rule is that it is payable at the time of vesting, or, at most, in one year thereafter, to facilitate the settlement of estates. My conclusion is that the remaindermen were entitled to the surplus as of the day it vested in them, namely, at Myra's death.
I will advise a decree awarding it to them, with this modification: The trust fund created by the codicil, with the accumulated income, is not to be paid over until Adelaide's death. In marshaling the surplus the income from this trust may be regarded as having been appropriated to her keep. If there is an excess, the amount will be ascertained and retained by the trustee to abide the specific direction of the codicil.