Miller v. Colt.

her equal share of the income which the fund held in trust for them might produce, and continue such payment for the natural lives of the grandchildren, and at their respective deaths to pay over to their lawful issue, if of legal age, and, if not, to their guardians, the parents' share of the principal; and if any of the grandchildren should die without lawful. issue, then the income, and finally the principal, of the share of such decedent should go to the others of the grandchildren and their lawful issue, on the same trusts and conditions as those on which the whole share was given. But if all of those grandchildren should die without lawful issue, he then ordered and directed his trustees and the survivors &c. of them to dispose of that share of his property as he had "directed his property to be disposed of in his will, of such of his children dying without lawful issue before his estate should have been distributed."

And he further directed that his executors should "pay and hand over" another fourth part of his estate to his son Morgan G. Colt, after deducting the sum charged to him on the testator's books at the time of the testator's death; and he provided that if Morgan G. Colt "should die before distribution, leaving lawful issue," the executors were to hold the share for such issue, according to the laws of this state distributing the estates of persons dying intestate. And he added: "But dying without such lawful issue, then said share to be disposed of to and among my three other children, subject to the conditions and limitations provided for as to the other shares of my son Roswell L. Colt, junior and Julia C. Colt."

The testator then proceeded as follows:

"One other of said shares I order and direct forthwith in like manner to be paid over to Thomas O. Colt, first deducting from said share the sum he shall stand charged with on my books at the time of my death. But if he dies before distribution, leaving lawful issue, then my said executors are to hold such share in trust for such lawful issue, to be distributed to and among them according to the laws of New Jersey for distributing intestate estates; and for want of such issue, to

Miller v. Colt.

and among my other children, as I have ordered my other property distributed, and subject to the conditions and limitations provided for as to the shares of my son Roswell L. Colt, jun. and Julia C. Colt; and the remaining fourth of my estate to hold in trust for the sole and separate use and benefit of my said daughter Julia C. Colt, for the term of her natural life, in the manner and under the qualifications, and subject to the exceptions and provision hereinafter stated in regard to this share. That is to say, my said executors and trustees shall, during the minority of my said daughter, pay for her maintenance and education a very liberal sum out of the income of said share; the balance of said income to be invested until my daughter shall attain the age of twenty-one years, or be married, whichever shall first happen; and from and after attaining the age of twenty-one, or being married, the said executors or trustees shall pay over to my said daughter, for her sole and separate use, married or unmarried, the entire net income of said share, until she attains the age of thirty, which will happen on the 22d day of May, in the year of our Lord eighteen hundred and sixty-five, and upon her arriving at the said age of thirty, then I direct my said executors and trustees to pay and hand over to her, if she wishes it, for her own sole and separate use, one fourth part of the estate held in trust for her, to be disposed of by her, as she may think fit, whether she be sole or married, and the income of the remainder of said share to be continued to be paid and applied for her sole use, as before ordered, during the residue of her natural life; and I do hereby give my said executors and trustees full power to invest and change the investments from time to time, as they shall think most for the interest of my said daughter. If my said daughter shall die leaving lawful issue, I direct her said share of my estate to be transferred to and among her lawful issue in the manner my said daughter by her last will and testament may direct, and for want of such direc tion, then according to the laws of New Jersey for the distribution of intestate's estates. But if she shall die leaving no lawful issue, then said share, or so much as has not been paid to her, shall go and be distributed in the same manner as I have directed the three other shares of my property to be appropriated; and my meaning in this last clause, which I have annexed to each of the four shares of my estate, is this-that the share of any one of my children shall, upon the death of said child, leaving no lawful issue, go over to the three others; that is to say, that the said share of Roswell L. Colt, jr., deceased, if his children shall all die leaving no lawful issue at their respective deaths; and so as to so much of the shares of my sons Morgan G. Colt and Thomas O. Colt, if they or either of them die leaving no lawful issue before such distribution; and in like manner if my daughter shall die leaving no lawful issue, the share or shares, or residue of

Miller v. Colt.

shares, shall go to my three surviving heirs, being the others of said heirs as may be dead leaving lawful issue then living when said shares go over, in equal shares; the lawful issue of any such deceased child to take per stirpes, or such share together as the parent would have been entitled to if then living, and no more. And it is my will that the share, or part of share, which any or either of my said heirs shall so take, shall go to him, her or them, for the same interest or estate, and under the same limitations or conditions, and subject to the same powers in all respects as I have provided for in their original shares respectively, and no other."

The testator then provided that if his before-mentioned three grandchildren should die leaving no lawful issue, and his sons Morgan and Thomas and daughter Julia should die leaving no lawful issue surviving him, the rest and residue of his estate "not already divided" should be divided into ten shares, and he disposed of all them, giving one to each of his five children, who, as before mentioned, were to be provided for by their mother out of her separate estate.

By the codicil he revoked the provision made for the children of his deceased son Roswell, and directed his executors to charge off to the account of profit and loss the charge on his books against their father, and discharge the estate of the latter from the payment thereof, and in lieu of the provisions in favor of Roswell's children in the will, he provides as follows:

"I do hereby will and direct that my said executors, the survivors and survivor of them, and the executors and administrators of such survivor, of my said will of 12th October, 1852, shall hold in trust for the benefit of my said grandson Roswell L. Colt, junior, the sum of forty thousand dollars, to be paid to him when he shall arrive at the age of twenty-five years, with the increase thereon from accumulation. But if my said grandson Roswell L. Colt, junior shall die before he shall arrive at the age of twenty-five years, then I direct that if he shall leave lawful issue, that the said sum of forty thousand dollars, with the accumulation thereon, be paid to the legal guardians of such lawful issue, for the use of such issue, to be divided among them according to the laws of New Jersey for the distribution of the estates of those dying intestate. But if my said grandson Roswell L. Colt, junior shall die before he shall arrive at the age of twenty-five years, without

Miller v. Colt.

issue, then I direct the sum of forty thousand dollars, with the accumulation thereon, to be added to my general estate and to be considered as part and parcel thereof, and to be divided into three shares as hereinafter provided for. It is my wish and desire, however, and so I order and direct, that after my said grandson Roswell L. Colt, junior shall arrive at the age of twenty-one years, the whole yearly income of said forty thousand dollars be paid to him until he shall arrive at the age of twenty-five years, if he shall live so long, and in the meantime that he be well educated and properly supported out of the income he derives from his father's estate and from the interest of this conditional bequest.

"In the next place, I will and direct that the said executors of my said will, the survivors and survivor of them, and his executor or administrator, shall hold in trust for the benefit of my granddaughter Maria Theresa Colt the sum of twenty thousand dollars, to be paid to her when she shall arrive at the age of twenty-five years, with the increase thereon from accumulation.

"But if my said granddaughter Maria Theresa Colt shall die before she shall arrive at the age of twenty-five years, then I direct that, if she shall leave lawful issue, the said sum of twenty thousand dollars, with the accumulation thereon, be paid to the legal guardians of said lawful issue, for the use of such issue, to be divided among them according to the laws of New Jersey for the distribution of the estates of those dying intestate. But if my said granddaughter Maria Theresa Colt shall die before she shall arrive at the age of twenty-five years, without issue, then I direct the said sum of twenty thousand dollars, with the accumulation thereon, to be added to my general estate, and to be considered as part and parcel thereof, and to be divided into three shares, as hereinafter provided for.

"It is my wish and desire, however, and I so order and direct, that after my said granddaughter Maria Theresa Colt shall arrive at the age of eighteen years, or shall marry, the whole yearly income on the said sum of twenty thousand dollars be paid to her, for her separate use and control, married or unmarried, until she shall arrive at the age of twenty-five years, if she shall live so long, and in the meantime that she be well educated and supported out of the income she derives from her father's estate, and from such part of the income from this condi tional bequest as may be necessary.

"In the next place I will and direct my aforesaid executors, the sur vivors and survivor of them, and the executors or administrators of such survivors, to hold in like manner, for the conditional benefit of my granddaughter Margaret Oliver Colt, the like sum of twenty thou sand dollars, subject to all and every the limitations, conditions, restrictions and reservations in every respect whatsoever, with remain

Miller v. Colt.

der, in case of need, for benefit of my general estate, as is provided for in the last foregoing conditional bequest in favor of my granddaughter Maria Theresa Colt.

66

And my said executors having thus far provided for the bequests and grants under this codicil, and the bequests and grants in my said will of the 12th October, 1852, up to the fifth item, I then order and direct my said executors, instead of dividing the rest and residue of my said estate, real and personal, into four parts as directed by said will, to divide the same into three equal shares or parts, one of which shares or third of my estate to be paid to Morgan Gibbes Colt, under the provisions, limitations and conditions in the fifth clause in my said will mentioned; one other share or third part of my estate to be paid to my son Thomas Oliver Colt, under the provisions, limitations and conditions in the fifth clause in my said will mentioned; and the remaining share or third part of my said estate to be held in trust by my said executors, acting as trustees, for the benefit of my daughter Julia Catharine Colt, under the provisions, limitations and conditions in the fifth clause in my said will mentioned; except as to the said three shares, if any of my said three children shall die, leaving no lawful issue, the share of such child so dying shall go to the others, and not to the children of my son Roswell, my intention and will being to leave the residue of my estate to and among my said three children and their heirs, exclusive of the children of my son Roswell, as I have in this codicil otherwise provided for them."

As before stated, the will and codicil were proved in 1856. It appears that the accounts were stated, and the shares equalized, and the estate was ready for distribution not long after the testator's death.

On the 12th of February, 1857, Julia C. Colt filed her bill in this court to draw the estate here for settlement, management and distribution. The bill prayed an account, and, among other things, that the amounts with which Morgan, Thomas and Julia were respectively charged on the testator's books, might be established, and that the complainant Julia C. Colt might have her residuary share in the estate. set off, and her annual income ascertained, and the mode. and time of payment fixed.

The executors filed their answer February 26th, 1857, submitting themselves, in all things, to the order and direction of this court. By a decree made in the cause on the