A provision that a definite amount of net income be paid by
trustees to the widow does not entitle her to income from the death
of the testator, but only from after the executors have been
discharged and the property turned over to the trustees.
This rule applies even if, after acceptance by the widow of the
provision in lieu of dower, it appears that the provision is not as
advantageous to her as though she elected to take her dower.
In considering whether a provision in a will is as advantageous
as dower interest, the fact that the widow is an executor and
receives commissions may be considered.
18 Haw. 34, 342, affirmed.
The facts are stated in the opinion.
Page 216 U. S. 368
MR. JUSTICE HOLMES delivered the opinion of the Court.
These are bills in equity, brought by the respondents, trustees
under the will of James Campbell, for instructions as to the
meaning of a clause in the will. James Campbell died on April 21,
1900, leaving large amounts of real and personal property. His will
was proved on June 26, 1900. By it, the same persons were made
first executors, and afterwards trustees. On July 3, 1905, a decree
of distribution was made discharging the executors and ordering
them to turn the property over to themselves as trustees. The
testator left a widow and children, and the question before the
Court is whether the widow, the appellant, is entitled to any part
of the income from realty before the same came to the trustees'
hands. The bill in No. 106 originally raised other questions, but
the widow is the only appellant, and what we have stated is the
single matter here. The supreme court decided against the appellant
on the merits in 106, the principal case. 18 Haw. 34. The bill in
107 was filed after the decree in 106, on the notion that the
decree did not fix the time when the widow's income from realty
began. The supreme court regarded the matter as
res
judicata, but discussed the merits again, and then affirmed a
decree dismissing the bill. 18 Haw. 342.
By the first clause of the will, the executors were to reduce
all the estate, real and personal, to possession, to collect the
income thereof "pending the distribution thereof," as thereinafter
provided, and to have the value adjudged. By the second, they were
to pay the debts and funeral expenses. By the third, there was
given to the widow a sum of money equal to one third of the value
of the personal property only, adjudged as above, after payment of
debts, etc. This sum was to be paid in cash, and if the condition
of the estate should not warrant the payment of the whole at one
time, then it was to be paid
"as rapidly as the income and interests of my estate shall
permit, without the sale of any real estate, or
Page 216 U. S. 369
the sacrifice of any personal property, as a means of raising
such sum, but provided that the entire sum be paid within two years
from the date of my decease, and no deferred payments shall, within
said period of two years, draw any interest."
The fourth clause gives the use and occupation of the testator's
dwelling house and grounds, furniture, horses, carriages, etc., to
the widow, and to the children so long as they remain unmarried,
and the executors or trustees are to keep the house and grounds in
suitable condition and repair at the charge of the estate; with
further details. The fifth clause directs the executors to pay to
the widow, "for the use of herself and our children, as a family
allowance, such sum, monthly" as may be decreed by the probate
court, and the trustees, after entering upon their functions, are
to make such further provision for the maintenance of the children
as is thereinafter directed. By the sixth clause, after satisfying
the second and third, the executors "shall, as soon as may be,
conclude the probate proceedings hereunder, and obtain a decree of
distribution of my estate," and the testator gives to the trustees
and to those living and resident within the Hawaiian Islands at the
date of such decree, all the residue of the estate not before
otherwise devised or bequeathed.
The trusts, so far as material, after a further provision in
clause seven as to the house and grounds and their contents, are as
follows: "Eighth. With respect to all property which shall be so
distributed to them," except that mentioned in seven, the trustees
are to reduce it to possession and manage it, paying charges and
their own commissions.
"And to collect all the rents, issues, profits, income, and
revenue thereof . . . and to invest and reinvest, and keep
invested, and at will to change the investment of any and all
moneys that shall come to their hands by virtue hereof,"
not otherwise specially disposed of,
"and to segregate, and keep separate and apart (during the life
of my wife) the accounts of and pertaining to the realty of my
estate from the accounts pertaining to any and all other thereof. .
. . Ninth. And from
Page 216 U. S. 370
and out of the net income, rents, issues, and profits of and
from the realty last aforesaid, said trustees shall pay the equal
one third part or portion thereof, in semiannual or (at the
discretion of said trustees) more frequent payments, to my said
wife, for and during the remainder of her natural life."
Habendum to her absolutely. By the tenth clause, the
remaining two thirds of the net income "from said realty" are given
to the children, with a proviso for their minority and making
surplus revenues capital. Finally, the sixteenth clause states that
the provision made for the widow "is intended, and shall be by her
accepted (if at all), in lieu and full satisfaction of her dower
interest in my estate."
It will be seen from the dates of the probate of the will, June
26, 1900, and of the decree turning over the property to the
trustees, July 3, 1905, that probably a longer time was taken to
finish the administration than the testator expected, and that, if
the widow did not have a right to her third of the income from the
real estate until in fact the estate went to the trustees, she will
lose a considerable sum that has accumulated in the meantime. The
loss is made the more aggravating that the estate seems to have
been ready for distribution on February 10, 1902. Nevertheless, we
think that any doubts are artificial, and agree with the Supreme
Court of Hawaii that the language of the will is too clear to admit
any interpretation but one. It is said that the provision is in
lieu of dower, and that the will, as construed, leaves her worse
off than if there had been no will. Whether that would be so or
not, if we take into account that she is one of the executors and
trustees, getting her share of the commissions, we do not know, or
think of much importance. The testator seems to treat it as an open
question whether she will accept the provision. However that may
be, the words are explicit. The eighth clause purports to deal only
with the "property which shall be so distributed to them." That
phrase dominates the whole clause. It is the rents "thereof" that
they are to collect, as by clause one the executors were to collect
all income
Page 216 U. S. 371
before distribution; the accounts pertaining to the realty, that
is the realty so distributed to them, are to be kept separate, and
the ninth clause gives the widow one third of the income of "the
realty last aforesaid." It is argued that, under the earlier
clauses, the realty and accrued income would be kept intact, and
that it is reasonable to suppose that the testator meant his wife
to have one third of the income of the land, as she had one third
of the personalty. It might be reasonable to suppose so if the
testator had not declared in terms what he meant. What he gave was
not one third of the income (of the realty) generally, as in
Lovering v. Minot, 9 Cush. 151, and as it was taken to be
by the probate judge, but one third of the income of the realty
"last aforesaid," -- that is, the realty distributed to the
trustees. It was one third of the income of the realty in the hands
of the trustees, the income collected by them from it, and of which
they were to keep a separate account. Perhaps the testator thought
that the family allowance provided in clause five would be a
sufficient substitute during the relatively short time for which he
thought that the administration would last. Perhaps he did not
think of the event that has happened at all. It would seem that the
widow had herself partly to blame for the delay between February
10, 1902, and July 3, 1905, as she was an executrix and trustee. At
all events, we are of opinion that she took no income from real
estate,
eo nomine, before July 3, 1905, and did take her
share from that date.
Decrees affirmed.