Appeal from St. Louis Circuit Court.
The facts of the case and the circumstances under which the questions arose sufficiently appear in the foregoing syllabus and the opinion of the court. As the principal questions involved the construction of the 17th clause of the testator's will it is here copied:
“17th. I give, devise and bequeath all the rest, residue and remainder of my estate, not hereby otherwise disposed of, whether real, personal or mixed, of whatever kind and wheresoever situated, unto my said wife Sarah A., my nephew Edward Bredell, and my said friend Alfred Chadwick, as trustees. To have and to hold the same unto them, the said Sarah A., Edward and Alfred, as joint tenants and not as tenants in common, and unto the survivors or survivor of them, and to the heirs, executors, administrators and assigns of such survivor forever-- as trustees in trust for the uses and purposes herein expressed. Said trustees are authorized and empowered to sell and convey any and all the real estate I may die seized or possessed of, lying or being outside of the said city of St. Louis with its present limits, and also to sell or exchange and convey fractions or parcels of lots lying inside of said city whenever they deem it prudent to do so for the interest of my estate, and to take the proceeds thereof and to apply and re-invest the same for the purposes and objects specified in this will and in the manner hereinafter more specifically mentioned as to the incomes of my estate. The property mentioned above in this devise and bequest lying or being in said city of St. Louis, and the proceeds that may be realized under the last clause, and also all the property hereby vested in my said trustees, I desire and direct them to keep together as one entire whole (until disposed of as hereinafter provided) and to be managed accordingly as such by them. They are to have the full possession thereof, and to improve, control, manage and dispose of the same, and to receive the issues, incomes and profits thereof, as fully as I could do if living; which issues and profits they are fully authorized and required to invest again as a part of my estate, either in real estate (if possible in the said city of St. Louis) or in good and secure stocks--say of political or municipal corporations, but not in the stocks of any private trading or banking corporation. I desire and will that all my children shall be well educated and taken care of according to the best judgment of my said trustees. And the expenses of the education, the clothing and the medicines of all my children, so long as they shall severally live with my said wife as a part of the family as above mentioned, and also of their entire maintenance and support, if it shall happen that they or any of them shall cease to live with my wife as aforesaid, so soon as that event shall transpire, shall be paid and defrayed by my said executors, and considered and treated as a part of the expenses of my estate and of the management thereof. In addition to the said George and Mary, already mentioned, I have the following children: Margaret D., John P., William B., Maurice Dwight, Thomas F., and Henry Collier. And it is my will and desire that as, and whenever any of my children (prior to the first division or partition that shall be made as hereinafter provided) shall come of age, or become married or settled in life, my said trustees shall advance to any such of them any such amounts of money or property as in their judgment and discretion shall be right and proper, keeping correct account thereof. And when my said son Dwight shall attain the age of twenty-one years, I wish and require my said executors and trustees immediately to settle up my estate, and divide the same out among my said children, as hereinafter mentioned, as far as it may be practicable. And if division thereof cannot, without detriment and loss, be then at once effected of the entire estate, I desire and direct that it may be made so far as it can be accomplished; and then, so soon thereafter as practicable, I require a further division to be made; and so on, from time to time, until the whole estate shall be settled and partitioned among my children. And whenever any division or partition shall be made as aforesaid, I require that my said executors and trustees shall report the same to the Probate Court of said county of St. Louis for its approval, and if the same shall be approved of by said court, then the same shall be binding and conclusive; and so of any and all divisions that my said executor, and trustees shall make as aforesaid. In making partition as aforesaid, I wish and direct that each and all my said children shall receive equal portions or shares, as my affection and parental regard for them all know no distinction. But if from providential visitation or unforeseen casualty, or their own bad conduct--none of which contingencies or misfortunes I hope may ever intervene--my said trustees shall think it right and proper and safest and best, under all the circumstances, to make any difference or distinction among my said children or any of them, in making any of the divisions or partitions as above provided for, they are hereby vested with full power and authority to do so, as fully and to all intents and purposes as I myself could do if living at the time; such discrimination always, however, to be subject to the approval of the said Probate Court as aforesaid. But if all my children shall be worthy, no distinction or difference shall be made among them merely because one or some of them may be deemed by my said trustees more worthy than the others of them. The shares or portions of my estate which shall be thus set apart to my children shall be held by them in their own several rights under the full and perfect legal title--to them and to their heirs, executors, administrators, and assigns, forever. But should my said executors and trustees so determine, they are hereby authorized and empowered to put the share or shares so set apart as aforesaid to any one or more of my said children, in trustees for their sole and separate use and advantage. When the first division or partition as above provided for shall be made, as I have already given to George and Mary an absolute portion or legacy of fifty thousand dollars each, I will and desire that each one of my other children (subject to the discretionary power on that point herein vested in my said trustees) shall first receive, in order to put them on an equality with said Mary and George, a sum or portion which shall be equal to fifty thousand dollars, together with compound interest thereon at the rate of six per cent. per annum, computed from the day when the said portions of Mary and George shall have been received by them, down to the time of such division. That is to say, I wish compound interest at the rate of six per cent. to be computed upon the fifty thousand-dollar portions I have given to Mary and George, down to the time of the first division; and when the aggregate of the principal of fifty thousand dollars and of the compound interest thereon at the rate aforesaid shall be ascertained, I wish an equal amount first of all to be given (subject to the discretionary power on that point above vested in my said trustees) to each one of my other children. And I wish and require that the same thing be done and the same course be pursued in regard to any advances that may be made under the foregoing provisions of this will to any of my children on coming of age, or marrying, or becoming settled in life. And when all my said children shall thus be made equal in respect of advancements, or in the portions of my estate received by them respectively, then in the partitions or divisions among them above provided for, they shall all receive equal shares and proportions of my estate, until the whole shall be divided out among them; subject, however, to the power of discriminating among them vested in my trustees, as above set forth. After the partition as aforesaid shall first be made, then the annuity hereinbefore given to my said wife, instead of being paid by said executors, shall be paid pro rata by and out of, and be charged upon, the portions set apart to her children and so much as shall have been paid to Mary and George over and above the fifty-thousand-dollar legacies given to them as aforesaid, which are never to be charged with any part of the aforesaid annuities.”
The questions were submitted to the court upon the printed arguments of counsel.
A. Hamilton and R. M. Field, for appellants.
We insist that all of the children having survived the testator, their interest vested at his death; and that this result not only was intended by him, but is in accordance with the plain and natural construction of the will.
It may be convenient, at the outset, once for all, to refer to certain f miliar rules and principles of construction, all more or less applicable to the case.
The well known formula, that the intention of the testator is to govern in the construction of his will, has found its way into our statute law. To this leading principle all other rules of construction are subordinate and auxiliary.
The policy of the law and the rules of interpretation require that estates in all cases should be held vested rather than contingent whenever it can be done without perverting the language of the devise--1 Jarm. on Wills, 726; Smith on Exec. Interests, 73; Vanhook v. Vanhook, 1 Dev. & Bat. 589; Fuller v. Winthrop, 3 Allen (Mass.) 60; Burd v. Burd, 40 Pa. 182. Accordingly, where the language of the will renders it doubtful whether it was the intention of the testator to postpone the vesting, or merely the time of payment or...
