Merriam v. Merriam

• Decision Date: 18 June 1900
• Docket Number: 11,991 - (106)
• Parties: WILLIAM R. MERRIAM and Others v. JOHN W. MERRIAM and Others
• Court: Minnesota Supreme Court

83 N.W. 162

80 Minn. 254

WILLIAM R. MERRIAM and Others v. JOHN W. MERRIAM and Others

Nos. 11,991 - (106)

Supreme Court of Minnesota

June 18, 1900

Action in the district court for Ramsey county by plaintiffs as trustees under the will of John L. Merriam, deceased, to obtain a construction of the will. Charles A. Appleton, a judgment creditor of Robert H. Merriam, intervened. The case was tried before Lewis, J., who made findings of fact, and as conclusion of law determined the construction of the will. From a judgment entered pursuant to the findings, plaintiffs appealed. Reversed.

SYLLABUS

Will -- Provision for Annuity -- Construction.

Where a testator provides a fund to furnish a certain income for his widow, designating the amount of the income, and providing that it shall be paid each year, and that securities shall be selected sufficient to secure that result, the selection of such securities in the first instance does not constitute a specific and changeless fund or legacy, the income of which must necessarily be diminished upon diminution of the producing capacity of such fund.

Will -- Demonstrative Legacy.

Such a legacy is what is called a "general" or "demonstrative" legacy, and, when the fund fails to produce the income directed by the testator for the benefit of his widow, such income, to the full amount, should be made up from the corpus of the estate.

Will -- Election by Widow -- Contract.

Where a widow accepts a provision for an annual income on consideration of a deed of her inheritance rights, at the request of the testator, such provision becomes contractual between her and the estate, and binds the estate to a fulfilment of the conditions upon which her acceptance was made.

John F Fitzpatrick and John D. O'Brien, for appellants.

Counsel cited: Moore v. Alden, 80 Me. 301; Pierrepont v Edwards, 25 N.Y. 128; Boomhower v. Babbitt, 67 Vt. 327; Merritt v Merritt, 43 N.J.Eq. 11; Additon v. Smith, 83 Me. 551; May v. Bennett, 1 Russ. 370; Boyd v. Buckle, 10 Simon, 595, 596; Trevor v. Trevor, 5 Russ. 24; Davies v. Wattier, 1 Simons & S. 463.

Keith, Evans, Thompson & Fairchild and Davis, Kellogg & Severance, for respondent.

Counsel cited: Baker v. Baker, 6 H.L. Cas. 615; Addecott v. Addecott, 29 Beav. 460; Sheppard v. Sheppard, 32 Beav. 194; Booth v. Coulton, L.R. 5 Ch. App. 684; Forbes v. Richardson, 11 Hare, 354; Taylor v. Taylor, L.R. 17 Eq. Cas. 324; Irwin v. Wollpert, 128 Ill. 527; DeHaven v. Sherman, 131 Ill. 115; Delaney v. Van Aulen, 84 N.Y. 16; Nudd v. Powers, 136 Mass. 273.

OPINION

LOVELY, J.

Appeal from a judgment construing certain provisions of the will of John L. Merriam, deceased, providing a source of annual income for his widow, Helen M. Merriam. The testator died at St. Paul, January 12, 1895, leaving surviving his widow, four sons, and one daughter, for whom he had made generous testamentary provisions from his ample fortune. One of the testator's sons, Robert, has become insolvent, and the owner of judgments against him duly intervened and is now the active contestant in this controversy. He claims that a legacy provided in the will for the benefit of the widow should be limited to apply to a specific fund, the principal of which cannot be resorted to upon the failure of the same to produce the amount it was created to secure for the widow.

It is necessary to set forth in full certain material portions of the will bearing upon the point in dispute. The testator bequeathed to Mrs. Merriam "the household furniture, silverware, family carriage, other family vehicles, and all horses used with the same * * * and all other household property in and about her homestead, and any stable building and stable fixtures," absolutely, in case of her survival. He also bequeaths to his wife one-third of all his real estate, to be conveyed to her after his death, coupled with a request that one-fifth of such share be conveyed within ninety days thereafter to his son William R. Merriam, which conveyance is in consideration and upon the condition that the widow shall have

"An annual allowance of $8,000 per year for and during her natural life, and which said annuity shall be provided for and paid over in the manner following, that is to say: My executors shall set apart from or provide out of my estate such interest or dividend-bearing securities as shall be sufficient to produce a certain annual net income of at least eight thousand dollars ($8,000.00) per year, and which said net income they shall collect and pay over to my said wife therefrom the sum of eight thousand dollars ($8,000.00) per year in quarterly instalments, for and during her natural life, for her own absolute use and disposal. And upon the death of my said wife the said securities shall be held by my said executors or their successors as a part and parcel of the rest and residue of my estate, to be hereinafter disposed of; but provided always, that if my said wife shall, in the exercise of her option, prefer and choose not to make the said conveyance and grant to my said son William R. Merriam of said equal one-fifth part of said one-third part of said real estate so to be set apart and conveyed to her, or if my said wife shall die after my own death, and before she shall have made such grant and conveyance to my said son William R. Merriam, his heirs or assigns, then, and in either of such events, the said executors shall forthwith convey and deliver to my said son William R., or unto his heirs or assigns, so much of the said interest-bearing securities so set apart for the purpose aforesaid as shall be equal in cash value to the cash value of the said equal one-fifth of said one-third of said real estate so to be set apart and conveyed to my said wife, and my said son William R. shall thereupon have and hold the said securities so to be conveyed to him, and unto his heirs and assigns, forever. And the balance of the said interest-bearing securities then remaining in the hands of the said trustees after such deliverance of a part thereof to said William R., his heirs or assigns, they shall continue to hold and pay the income thereof to my said wife for and during her natural life. And upon and after her death the same, and any net accumulations thereof, shall become a part and parcel of the net rest and residue of my estate, to be hereinafter disposed of."

An advancement of $50,000 for the benefit of the testator's son William R. Merriam is also noticed in the will as made in lieu of his distributive share in his father's estate, with a suggestion that further advancements may be made, and would in that case be charged against such legatee. It is further provided that the residue of the estate is, including a few minor legacies not noticed, bequeathed to his wife, his son William R. Merriam, and his friend Amherst H. Wilder, in trust for the purpose of executing the provisions of the will. Three remaining sons of the testator are to have a distributive share of one-fourth severally of the residue of the estate when each of said children reaches the age of 28 years. The remaining one-fourth of the undistributed part of the estate is to be reserved by the trustees, with its accumulations, during the life of his daughter previously married, Jennie E. Howell, to whom an advancement of $50,000 (the same amount as that advanced to William R. Merriam) had been made upon her marriage; and the testator authorizes and empowers the trustees,

"In the exercise of their sound judgment and discretion, to provide for the comfortable support and maintenance of my said daughter during her lifetime out of and from the said net rents, incomes, profits, and accumulations of the said remaining one-fourth part of the said rest and residue so to remain in their hands during the lifetime of my said daughter; and, in the exercise of the same judgment and discretion, they may from time to time, during the lifetime of my said daughter, convey, pay over, and deliver to my said daughter such parts and portions of the principal thereof as to the said trustees or their successors as such may seem for the best interests of my said daughter. And any and all such payments, whether of principal or interest, income or profits, which the said trustees or their successors shall so make to my said daughter during her lifetime, in the exercise of such judgment and discretion, shall thereafter inure to her, and her heirs and assigns, forever. But nothing in this will contained shall entitle my said daughter to any interest or estate in or to any part or portion of my real estate or personal property save and except to the extent and amount thereof which the said trustees or their successors may, in the exercise of their judgment and discretion, pay over or convey to her during her lifetime."

The testator appointed his wife, his son William R., and his friend Amherst H. Wilder executors of the will, as well as trustees to execute the trusts created therein; and further provided that such trustees

"May also, in their discretion, grant, bargain, sell, lease, mortgage, or otherwise incumber such real estate or personal property, or any part or portion thereof, either for the purposes of paying debts or legacies, or for the purposes of such partitions or divisions, or for the purposes of investment or reinvestment, or otherwise providing for or carrying out the true intent, purposes and trusts of this will. And, for the purposes aforesaid, they are hereby authorized and empowered to make, execute, and deliver any and all such deeds, leases, mortgages, or other conveyances in the law necessary to carry out the powers hereby granted."

Within the time designated, Mrs. Merriam made the deed to William R. Merriam conveying to him one-fifth of her one-third...