Miller v. Colt. 1st of September, 1858, it was ordered, on the advisory opinion and report of a master, that the shares of Morgan, Thomas and Julia be equalized in a mode mentioned in the master's report, and then agreed upon by them and approved by this court, and that thereupon, and after having charged each of them with the sum of $2,463.10, and after payment of debts, legacies, commissions and other liabilities, the estate be divided into three equal parts or shares, one for each of the three children, Morgan, Thomas and Julia, then Mrs. Fowler. By the master's report, which was dated June 22d, 1858, and was confirmed by the decree last mentioned, the account of the executors with Morgan L. Colt, "one of the heirs of said deceased," is stated, and by it it appears that the executors charge themselves with a balance of the estate of $588,406.98, and subtracting therefrom the amount of the legacies to the children of Roswell L. Colt Junior, $80,000, state that $169,458.993, one-third of the difference, belonged (subject to commissions) to Morgan O. Colt, and that the same amount, subject also to commissions, was due to Thomas and Julia respectively; each of the thirds being subject, under the will, to a charge for an annuity and a life insurance premium. The equalization was made soon afterwards. By another decree in that cause, dated September 15th, 1868, it was recited that all the debts and charges against the estate had been paid except the legacies to the children of Roswell L. Colt, junior, which it was proposed to secure, and it was ordered that Morgan G. Colt's share of the estate of the testator be transferred to him. The estate then, according to that decree, consisted of 2,571 shares of the capital stock of the Society for Establishing Useful Manufactures, and a house and lot in Paterson. By another decree in the cause, dated October 21st, 1868, it was recited that all the liabilities of the executors, and all the debts of the testator, and all charges against his estate had been paid up to July 1st, 1868, except the legacy of $40,000 given Miller v. Colt. to Roswell L. Colt, junior, and the accumulation thereon, and the legacy of $20,000 given to Maria Theresa (then Mrs. Salisbury) and the accumulation thereon (the other daughter of Roswell L. Colt, son of the testator, died unmarried, September 27th, 1868), and that it appeared by the master's report that the executors had transferred to the trustees of the children of Roswell L. Colt, junior, deceased, bonds and mortgages to an amount sufficient to secure the payment of those legacies and the accumulation thereon when due, for the purpose of securing the payment thereof,' and that the executors owed nothing on account of the estate except the two legacies to the children of Roswell L. Colt, junior, deceased, which, being duly secured, might be properly treated as paid by the executors, and that the executors then held the estate of the testator ready for distribution according to the will, and that the estate consisted of 2,571 shares of the capital stock of the Society for Establishing Useful Manufactures, and of a dwelling-house and lot in Paterson, and a contingent interest in the two legacies to Roswell L. Colt, junior and Maria Theresa Salisbury, children of Roswell L. Colt, deceased, and in the accumulation thereon under the will; and that Mrs. Fowler was entitled, under the will, to the full one-fourth part of her share of the testator's estate; possession to be handed over to her by the executors on her arriving at the age of thirty years, which she had already attained, and it was thereupon ordered that that part of her share be set off and transferred to her accordingly. In 1863, Thomas O. Colt was duly found, on inquisition under the "Act relative to habitual drunkards" (Rev. p. 324), to be an habitual drunkard, and Morgan G. Colt was duly appointed his guardian. Those proceedings were never set aside. He died in July, 1869, intestate, and administration. of his estate was granted to the complainant in 1870. It appears, then, that in the fall of 1868, and in the lifetime of Thomas O. Colt, the debts of the estate had all beer paid, and all legacies either paid or so secured as to be Miller v. Colt. regarded for the purposes of distribution of the estate as having been paid. Morgan G. Colt's share was ordered to be paid to him at that time. Three-fourths of Mrs. Fowler's share were held in trust for her, and the other fourth was then paid to her. There was no reason why the share of Thomas O. Colt should not have been handed over to his guardian. Certain it is that distribution of the estate was practically made in his life-time. His share was ascertained and was in the hands of the executors, one of whom was his guardian, and he himself was one, also. The complainant claims that he is entitled to so much of that share as is personal estate, and the defendants resist the claim on the ground that by the will the share of Thomas O. Colt was limited over to his brother Morgan and sister Julia, in the event of his death without lawful issue. The will provided for a division of the estate immediately after the directions of the first four sections were complied with. The language is: "My executors or the survivors or survivor of them, after having first complied with all the previous provisions of this my last will and testament, shall forthwith divide all the rest and residue, of every kind whatsoever, &c." It orders and directs that one of the four shares (reduced by the codicil to three) shall forthwith be paid over to Thomas, first deducting from it the sum with which he should stand charged on the testator's books, but that if he should die before distribution, leaving lawful issue, then the executors were to hold the share in trust for such issue, to be divided among them according to the laws of this state for the distribution of the estates of persons who die intestate; and it adds, " for want of such issue," to and among the testator's other children, as he had ordered his other property distributed, and subject to the conditions and limitations provided for as to the share (according to the will) of his daughter Julia and the share of the children of his son Roswell L. Colt, junior. The defendants insist that the limitation over, on death without issue, is not confined by the will or codicil to death Miller v. Colt. before distribution. But it is quite clear that the testator in that limitation referred to death before and not to death after distribution. In the first place, such is obviously the natural import of the language. Both limitations manifestly and naturally refer to the same point of time. And, again, there is no other evidence of any intention on the part of the testator to limit the share over in case of death without lawful issue after distribution. The share is given to the legatee himself. It is to be "paid over" to him. The language of the will in regard to Morgan's share is, "pay and hand over." It is undeniable that the legacy vested on the death of the testator. The language by which it is insisted the limitation over in case of death without lawful issue after distribution is created, is not to my mind evidence of any intention to impose such limitation. In Herbert v. Tuthill, Sax. 141, the testator ordered that all the rest of his estate, real and personal, be sold by his executors and turned into money as soon after his decease as conveniently might be, and distributed among his children in the following proportions, viz., two shares to each of his sons, and one share to each of his daughters; and provided that none of the legacies should lapse by the death of any of his children, but that in case of such death the share of the deceased child should go to his or her issue; and if such deceased child should leave no issue, then his or her share should go to and among the testator's surviving children, in the like proportion. It was held that the language did not indicate an intention to limit the legacies over on the legatee's death without issue, after the death of the testator. It is urged by the defendants' counsel that the testator clearly intended to exclude the five children for whom his wife was to provide, from participation in his estate, and it is insisted that that is a strong argument in favor of the construction for which they contend; and in this connection they direct attention to the language of the testator in both Miller v. Colt. will and codicil. The expression in the will to which they refer is that which declares it to be the testator's will and fixed determination that none of those children or any of their children should have any portion or share of his estate except as thereinafter provided in the will. The expression in the codicil is that if any of his three children, Morgan, Thomas or Julia, should die, leaving no lawful issue, the share of such child so dying should go to the others, and not to the children of his son Roswell, his intention and will being to leave the residue of his estate to and among his three children and their heirs, exclusive of the children of his son Roswell, as he had in the codicil otherwise provided for them. In the first place, it is to be borne in mind that the testator does not seem to have been desirous of excluding the five children for whom his wife was to provide from participation in his estate absolutely, and at all events, as conclusively appears by the gift of a contingent legacy to each of them in the will; his exclusion of them seems to have been due to the fact that they were to be provided for by their mother out of her separate estate, and, therefore, had no claim upon him for participation in his estate. There is no evidence of any intention or disposition on his part to exclude them from any share of his estate, if derived by them through gift from their brothers or sister, or by kinship or heirship. The provision in the codicil was intended merely to exclude the children of Roswell L. Colt, junior, from the benefits of the limitation over made in the will in case of the death of either of those to whom shares of the residue were given by the will. By the will the residue was divided into equal fourth parts, one of which was to go to the children of Roswell L. Colt, junior, and they, under the will, would have been entitled to a part of the share of either of the other residuary legatees who should die before distribution without leaving lawful issue, and whom they might survive. Inasmuch as, by the codicil, the provision made for them by the will was revoked and other provision substituted, he |