and irrelevant, which objection being overruled, the witness answered: "They both claim to be." The witness was then asked: "(2) Are they also working for the doing away with the relationship of the wage-earner and master?" This question was objected to upon the additional ground that it was indefinite, and, the objection being overruled, the witness replied: "I would prefer that you would specify what you mean by master and wage-earner." It appears that the question was not answered, and the cross-examination of the witness proceeded without further objection. what sense the defendant used the language, it was not improper for the trial judge to say to the jury that they have the right to ask themselves whether such language as that has a tendency to advocate, encourage, etc., persons to kill or injure, etc.; for later on in the charge the court said: "If you find that the defendant did use those words, and that the words were such as would the killing or injuring of any class or body of advocate, encourage, justify, praise, or incite persons or of any individual, then it is your duty to convict the defendant; if not, then he should be acquitted." If the trial judge erred in this respect, it The It is argued that it was error in compelling was advantageous to the defendant. the witness to answer regarding her views on trial judge evidently overlooked the fact that economic questions. We think, however, that the defendant was charged in the indictment the mental attitude of a witness who in this "that he did advocate, encourage, and incase seems to have been engaged on the same cite," etc., and not also that he did justify mission with the defendant was subject to and praise. In the sense in which the words be probed as to her interest or bias. Το To "advocate," "encourage," and "incite" are what extent such an examination may pro- used in the statute they are cognate terms, ceed rests within the sound discretion of the and therefore may be used in a single count trial judge. of an indictment without rendering such indictment subject to the charge of being We do not find that this discretion was abused in this instance. A conclusive answer, however, to the appellant's argument is that, if the questions were immaterial and irrelevant, as the appellant contends, they would form no basis to disturb the judgment, unless it further appeared that answers thereto prejudiced the defendant in maintaining his defense on their merits. But this does not appear. [11] The only other objection presented by the plaintiff in error against the validity of the judgment is that the trial judge committed harmful error in instructing the jury as follows: "In order to ascertain that you have the right to ask yourselves what did the defendant mean when he said, 'I make a motion that we go to the silk mills, parade through the streets and club them out of the mills, drag them out of the mills.' What did he mean by that? You also have the right to ask yourselves, Does such language as that have a tendency to advocate, encourage, justify, praise, or incite persons to kill or injure any class or body of persons or an individual?" The argument addressed to us on this head, by the plaintiff in error, is that by this instruction the jury were made to understand that if the language charged had a tendency to do that which is prohibited by statute they might find the defendant guilty. It must not be overlooked that immediately preceding this instruction the court was discussing whether the language used by the defendant came within the contemplation of the statute, and said: "That is, does the language alleged to have been used by him advocate, encourage, justify, praise, or incite the unlawful killing or injuring of any class or body of persons or of any individual." We think the view taken by the trial judge was more favorable to the defendant than he was entitled to. In order to ascertain in duplex. The words "justify" and "praise" were intended to meet other conditions and circum stances. The pleader very properly in this case did not use these terms in the indictment. It was not necessary, in order to find the defendant guilty, that the jury should have found that he did advocate, encourage, and incite, etc., for if the defendant did any one of them he could be convicted under the indictment. Thus it is plain that the trial judge put a heavier burden on the state than the law required, which circumstance inured to the defendant's benefit, and of which he cannot be heard to complain. For the reasons stated, judgment will be affirmed. (83 N. J. Eq. 428) MOORE v. DOWNEY et al. (Court of Chancery of New Jersey. June 25, 1914.) 1. WILLS (§ 619*)—“ANNUITY”—NATURE AND CREATION. A bequest to trustees to pay the testator's natural life an amount equal to one-half the wife "annually in quarter payments during her net income" from his estate, which consisted of both real and personal property, was not an "annuity," which is the bequest of a sum certhe interest of a fixed and certain sum of money. tain which does not even include the gift of [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1437; Dec. Dig. § 619.** For other definitions, see Words and Phrases, vol. 1, pp. 404, 405; vol. 8, p. 7575.] 2. ANNUITIES (§ 4*)-APPORTIONMENT. Annuities are not generally apportionable. [Ed. Note.-For other cases, see Annuities, Cent. Dig. §§ 13, 14; Dec. Dig. § 4.*] 3. WILLS (8 733*)-BEQUEST-INCOME. A bequest in trust to pay the testator's wife quarterly during her natural life an cruing from his estate, which included both real amount equal to one-half the net income acand personal property, was not a bequest of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes income payable at fixed times, and the wife's representatives were entitled to such an apportionment of the income as would have given her so much as accrued from day to day during her life, including interest accruing on mortgages and dividends declared during her life, although not payable until after her death. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1819-1846; Dec. Dig. § 733.*] 4. WILLS (§ 687*)-TESTAMENTARY TRUST-INTEREST OF BENEFICIARIES-INCOME. "First. I direct that my said executors or trustees pay to my beloved wife Loraine H. Barr annually in quarterly payments, during her natural life, an amount equal to one-half the net income accruing from my said estate.' The testator died February 26, 1908,, and during the lifetime of the widow payments to her under this clause were made quarterly on the 28th days of February, May, August, and November of each year. The last payment to her was made on February 28, If Testator, after specific legacies, devised the entire residue to trustees for investment and to pay out of the balance one-half of the net in- 1913, and she died on May 21, 1913. come to his wife for life, and after her death the income is apportionable, then the sum certain amounts to each of two legatees for of $2,760.76 is the proportion of the quarlife with cross-survivorship, and a certain amount to another legatee for life, such legatees terly payment to which the widow at the being the wife's kin, and to pay out of the prin- time of her death would have been entitled cipal certain amounts to the issue of two of the out of the entire income up to the quarter legatees in contingencies which had not occur-ending on the 28th of May, 1913. Her execred, and out of the remaining one-half of his income not disposed of directed two annual payments of $2,500 each to a nephew and niece for life, and a payment out of the principal to the issue of such nephew and niece, respectively, of $50,000, with cross-remainders on survivorship, upon contingencies which had not occurred, and gave all the remaining surplus income equally to two sisters during their natural lives, and three-ninths of all the residue to each. of them, their heirs and assigns, and one-ninth each to a nephew and two nieces. The payments to legatees other than his sisters amounted to less than the annual income of the estate, leaving a surplus. Held, that during their joint lives the sisters were equally entitled to the surplus income of the entire estate, after deducting the special legacies, and that until the happening of the contingency requiring the payment out of one-half of the principal of the legacies to the issue of the nephew and niece or either of them, the principal was to be held as an entire fund. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1638-1643; Dec. Dig. § 687.*] Bill by Edward J. Moore, surviving trustee, etc., of Thomas C. Barr, deceased, against J. Nethermark Downey and others for a construction of the will of deceased. Will construed. Frank Bergen, of Newark, for complainant. Chauncey G. Parker, of Newark, for defendants Dorey & Birch. H. M. Barrett, of Newark, and William R. Brinton, of Lancaster, Pa. (Barrett & Barrett, of Newark, of counsel), for defendants Downey & Lees. Norman W. Harker, of Philadelphia, Pa., for defendants executors of Mrs. Barr. EMERY, V. C. [1, 2] This bill is filed by Edward J. Moore, the surviving trustee under the will of Thomas C. Barr, for a construction of his will three contested points. The first is a question arising on the claim of the executors of the widow of the testator for the payment to them of certain income of the estate, amounting to $2,760.76, now in the hands of the trustee, and being a portion of the income of the residue of the estate which was given and devised to the executors and trustees by the eleventh clause of his will, upon trusts therein specified. The first trust (as to payments) was as follows: utors claim that they are entitled to such apportionment of this entire income. The ground upon which counsel for these executors base this claim is that this bequest to the tors base this claim is that this bequest to the widow is a gift of an annuity, and, while admitting that annuities are not generally apportionable, claim that this annuity was in lieu of dower and for the maintenance and support of the widow, and therefore, under the decisions of our courts, is excepted from the general rule and is apportionable. This bequest of income is not, however, in my judgment, an annuity. An "annuity" is the bequest of a sum certain, and even the gift of the interest of a fixed and certain sum of money is not an annuity. 3 Pom. Eq. Juris. § 1134 (3d Ed.), citing, inter alia, Whitson v. Whitson, 53 N. Y. 479, 481 (1873); 2 Redf. Wills, 453. Much less can the gift of the income or of a specified portion of the net income of the general residue of the estate, including, as here, real as well as personal estate, be considered an annuity or the gift of a sum certain. [3] Treating this devise and bequest to the wife not as the income payable at fixed times, her executors are, however, under the general rule well settled, entitled to such an apportionment of the income as will give to the widow the benefit of so much of the income as accrued from day to day during her life. Brombacher v. Berking, 56 N. J. Eq. (11 Dick.) 251, 255, 39 Atl. 134 (Reed, V. Ch., 1897). This would include interest accruing on mortgages and also dividends declared during her lifetime, although not payable until after her death. The case does not show what the apportionment would be on this basis and this may be the subject of further inquiry, if necessary. [4] The second and third questions are connected and involve the general question whether the entire principal trust estate or fund in the hands of the surviving trustee must be held intact for the purpose of paying the income of the entire estate (after certain deductions) to the two sisters of the testator during their joint lives, or whether, after the death of the widow, who was entitled to *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes one-half of the net income during her life, | plates apparently a division into two parts of one-half of the principal of the estate be- the net income of the whole estate invested comes immediately divisible among the per- as one trust fund. A provision for the paysons entitled as residuary legatees to the es- ment of one-half of the net income of an entate, and whether therefore the sisters of tire principal fund is manifestly a different testator are entitled to require only one-half thing from a direction to pay the net income of the principal to be retained for the pay- of one-half of the principal fund. And under ment of income to them on this half for their this direction, I think the trustees have no lives. For the sisters it is contended that authority to make such division of the printhe entire principal must be held at least dur- cipal fund into two separate parts or funds. ing their joint lives for the payment to them This direction completes the eleventh item or equally of all the income thereon, including paragraph, and the next or twelfth paragraph that previously enjoyed by the wife, after provides for the payment after the death of deducting specific annual payments of income his wife, to each of two legatees, Mrs. Fretz to other relatives under the will. These pay- and Miss Nippes, of $2,500 during their rements to other legatees, together amounting spective lives, with cross-survivorship to each to $10,500 annually, are much less than the of these legatees, and to Frank P. Nippes, income of the estate, which exceeds $800,000, Jr., of $500 during his life, without survivorand which as now invested yields an annu- ship provision. These three legatees are, it al income of about $48,000. is said, of testator's wife's kin; but, although The sisters are also the residuary legatees these payments are not to be made until to the extent of one-third each of the entire after his wife's death, there is no direction fund not otherwise disposed of, but they that they are to come out of the half of the claim that no portion of the principal is yet net income, which would have been paid to divisible. The residuary legatees of the trust the wife, had she been living, nor is there fund, other than the sisters, being a nephew any direction which would make them payand nieces of the testator and a niece of his able otherwise than out of the income generwife, and who are each entitled to one-ninth ally after his wife's death. Following this is of the residue, claim that the sisters are en- the thirteenth paragraph, which provides for titled only to the income of one-half of the the payment out of the principal of the estate principal fund (less the special deductions) of two sums of $50,000 each to the issue of and that after the death of the wife one-half these two legatees, Mrs. Fretz and Miss of the principal became immediately divisible Nippes, in certain contingencies. These conamong the residuary legatees. These two tingencies have not yet occurred and at presquestions, the right of the sisters to the in-ent only have a bearing, as being required to come of the entire fund, and the right to distribute any portion of the principal, are thus inseparably connected, and decision upon one point affects the disposition of the other. The difficulty in reference to the construction of the will on these questions-for there is a difficulty-arises from the fact that the will is not only inartificially drawn; but, in reference to the particular point now in question, it is drawn confusedly, as will appear from a recitation of its provisions. The will after a direction for payment of debts and funeral expenses, and for the payment of specific legacies (all of which amounted to about $50,000), gave and devised the entire residue of his estate to his executors and trustees, in trust for the uses thereafter named. This residuary clause vested in the executors the legal estate in, the entire residue, leaving, however, the equitable or beneficial estate therein to be further declared. Directing that the trustees invest and keep the estate invested and collect the rents and profits therefrom, pay all taxes or other charges, the testator then directed that they pay over the balance after such payment. This "balance" must be taken on the face of it to relate to and include only the payment of net income of the estate, considered as a whole. The first payment to be made is to his wife annually in quarterly payments during her life "of an amount equal to one-half of the net income." This direction contem be provided for in case any distribution of principal be now directed. The important features of the thirteenth paragraph, on the present questions, are: (1) That this payment of principal is not specially directed to be made out of a half of the principal, nor is there any provision that would indicate it is not payable out of the principal generally; and (2) that these payments of principal to the issue of these two life tenants are not, by this clause or any other, made expressly dependent on Mrs. Barr's death. They only become so dependent by reason of the fact that such payment out of the principal (considered as a single trust fund) would pro tanto deprive Mrs. Barr during her life of one-half of the net income of the whole estate, previously given upon this trust, and might therefore by implication be payable only after her death. After these directions, which, it will be seen, fall far short of one-half of the net income and do not dispose at all of the balance of the one-half of the net income payable to the wife during her life, the testator, without any further special express reference to this balance of the one-half of the net income which the wife had received, seems to assume by the next paragraph of his will that he had in fact already made such direction as to this balance of income. The fourteenth paragraph reads: "I further direct that out of the remaining one-half of the income of my estate not yet disposed of" (the italics are mine) "there be [ time arrives for the division of the principal, paid two annual payments of $2,500 each" to remains to be specially considered. a nephew and niece during their respective lives. This clause apparently treats the "remaining one-half income," i. e., the income which remained after the half income given to the wife for life, as a separate fund, and apparently authorizes the inference that the payments of income to the wife's relatives after her death were by the testator considered as being made as, in part at least, "disposing of" the one-half income previously given to the wife. But while the entire income is apparently divided, there is so far no indication or suggestion that the principal is to be divided, or is not to remain entire. The next paragraph, the fifteenth, provides for a payment to the issue of this nephew and niece respectively of the sum of $50,000, with cross-remainders on survivorship, and these two sums of $50,000 each are to be paid on contingencies which have not yet occurred. on contingencies which have not yet occurred. These payments, however, are specially directed to be made "out of the principal or corpus of the second one-half of my estate." corpus of the second one-half of my estate." Up to this point in the will, as I have said, there had been no indication of an intention that the entire principal of the trust estate that the entire principal of the trust estate should at any time be divided into two portions, and this direction for manner of payment at this time by a division of principal cannot, in my judgment, avail or be considered sufficient to establish the right to make such division or principal into two funds from the inception of the trust. It seems to be, however, a plain clear direction that these payments, when made, shall be made in this manner, and when the contingency arises requiring the payments, or either of them, to be made, under this clause, a division of the principal into two trust funds may then be required, in order to carry out all the express provisions of the will. Had similar directions been given that the $50,000 legacies previously given to the issue of the wife's kin be paid "out of the first half of my estate," I am inclined to think that the division of the entire estate into two trust funds would then have been required on the happening of the contingencies therein provided for payment, and that, in the absence of any special direction for a previous division, the division into two funds must have taken place, as soon as the contingency for payment out of either specified half of the principal first arose. But no such provision for payment of the two $50,000 legacies to the issue of the wife's kin was made, and, in the absence of any other provision controlling the holding of the trust estate as an entire estate, it must, I think, be so held, at least, until this contingency for payment under this fifteenth paragraph arises, and the trustee under the will has no authority to divide the principal of the trust estate into two portions until that time. The matter of the disposition of the "surplus income" until the Up to this point in his will (the fifteenth paragraph), the testator had made provision, first, for the entire one-half of the net income during his wife's life, with an express disposition after her death, among her relatives, of a portion only of this one-half income which would have come to her, leaving the balance of this one-half undisposed of by any express direction; and he had also, secondly, made express provision for only a portion of the other one-half of the income of the entire estate. Then follows a separate distinct paragraph, the sixteenth, dealing with income alone, as follows: "I further direct that all remaining surplus income be divided equally and annually between my two sisters Katherine V. Dorey and Helen L. Birch, during their natural lives." This provision gives rise to the principal dispute, which is whether "surplus income" under this clause means the income not previously effectively disposed of by the previous bequests of income, or whether the "surplus income" bequeathed by this clause is the surplus only of the second half of the income, being that not given to the wife durincome, being that not given to the wife during her life. The latter contention is based on the general claim above discussed that it sufficiently appears on the whole will that a division of the principal into two funds from its inception is contemplated, and that, if this be established as the true construction of the will, then the "surplus income" referred to in this paragraph must be the surplus only of the income of the second or remaining half of the principal fund referred to in the fourteenth paragraph as being the surplus "of the remaining one-half of the income not yet disposed of" by the legacies to the wife and others after her death, by the paragraphs preceding the fourteenth. The "surplus" income, taking this in the sense of income not actually or effectively disposed of, certainly included a balance of income after the wife's death not absorbed by the payments to the previous legatees, and the precise question is whether this express direction as to "surplus income" includes all income not actually disposed of, or whether this bequest of the surplus income is to be treated as a specific bequest of the surplus of the remaining or second one-half. If so, the "surplus" of the first one-half falls into the general residuary bequest of the equitable or beneficial estate in which the trustee has the residuary legal title. This clause, the seventeenth, directs all the residue to be divided into nine equal parts and paid over, three-ninths to each of his sisters, her heirs and assigns, and one-ninth each to his nephew J. N. Downey, his niece Helen L. Downey, and Katherine N. Nipper, his wife's niece. The time for this payment is not expressly fixed; but treating the previous clause as one disposing of the entire surplus income of the estate, not merely of the surplus of one-half of the income, this last residuary clause applies to the principal fund alone of the equitable estate, leaving the previous clause to be construed as the residuary clause applying to the income. It must be conceded, I think, that by rea son of the confused and inartificial character of the will as bearing on these points of dispute, the contention can fairly be made that such division of principal into two funds from its inception and a separation of the incomes into two distinct portions is suggested or indicated; but, as I have stated, it cannot be safely said that, taking the whole will, such division has been directed, or that there are any directions in the will sufficient to justify the conclusion that the testator intended in the sixteenth paragraph to restrict the "surplus income" to that of the second half of the fund referred to in the fourteenth paragraph. On considering the whole will and the arguments and briefs of counsel, I reach the conclusion: (1) That during the joint lives of the sisters they are equally entitled to the surplus income of the entire estate after deducting the special legacies; and (2) that until the happening of the contingency requiring the payment out of one-half of the principal fund of the legacies to the issue of J. Nethermark Downey and Helen L. Downey, or either of them, the fund is not divisible under the will, but is to be held as an entire fund. And this construction as to the time of division does, I think, carry out all the provisions of the will. Any construction fixing either the inception of the trust or any other time for the division of the principal must necessarily rest more on a supposed plan, indicated or suggested by the partial and incomplete provisions rather than on the construction of the words of the entire will actually used by the testator and from which his intention must finally be determined. Whether, on the death of either of the sisters, the payment to the survivor of either the entire or any portion of this surplus income is to be continued, is not decided. Decision upon this point should not take place until the question arises and the parties then interested are heard, and at this time would be premature. (83 N. J. Eq. 361) TANTUM v. CAMPBELL et al. death or to M. and P. or the survivor of them for want of such issue alive at the determination of the particular estate. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*] 2. WILLS (§ 608*)—RULE IN SHELLEY'S CASE -APPLICATION-REMAINDERS. The remainder is contingent as to the person or persons who shall take at the death of the life tenant; and therefore the rule in Shelley's Case, which is a rule of law, and not of construction, does not apply. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 536-540; Dec. Dig. § 264.*] 4. REMAINDERS (§ 14*) WILLS (§ 498*) That part of the prayer of the bill in this cause to which objection is made must be struck contingent remainder (with others) at her death, out, because: As L. B. S.'s mother had only a which became extinguished, as to her (mother's) interest, by the happening of that event, she (L. B. S.) inherited nothing from her mother; and, as her great-grandfather by his will created that remainder, which has as yet become a vested remainder in nobody, she has not taken as a purchaser from him, although she may, mother, the life tenant, because she is one of the and will, yet do so, if she survives her grandissue of her grandmother's body begotten, according to the legal meaning of that term, which comprehends issue ad infinitum, and not that of the body of an immediate ancestor only. [Ed. Note.-For other cases, see Remainders, Cent. Dig. 10; Dec. Dig. § 14:* Wills, Cent. Dig. §§ 1087-1089; Dec. Dig. § 498.* For other definitions, see Words and Phrases, vol. 4, pp. 3782-3792; vol. 8, p. 7693.] 5. REMAINDERS (§ 14*)-POWER TO CONVEYCONTINGENT ESTATES. Neither M. M. S., daughter of the life ten-. ant, nor any of her (life tenant's) other children, were empowered by section 19 of the Conveyancing Act (2 Comp. St. 1910, p. 1539), to dispose of, or in any manner charge, the land described in the bill; they being within the proviso that no person shall be empowered to dis-/ pose of (mortgage) any contingent estate where (Court of Chancery of New Jersey. May 28, the contingency is as to the person in whom the 1914.) estate may vest. [Ed. Note.-For other cases, see Remainders, Cent. Dig. § 10; Dec. Dig. § 14.*] Bill by Margaret W. Tantum against Catherine Campbell and others to foreclose mortgages. On motion to strike out part of the prayer of the bill. Motion granted. William J. Backes, of Trenton, for the motion. Charles H. English, of Trenton, opposed. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |
