N. Emery et a. Executors, plaintiffs in error, vs. The Judge of Probate, 7 N.H. 142

Parker, J. delivered the opinion. The bond in this case was executed in 1814, and the estate of Nicholas Gilman, or that portion of it embraced in the residuary clause, has been from that time to the present held by the residuary legatee, under the will, probably without any inventory or account rendered, upon the supposition that the rights of all who were entitled to require a bond were well secured by the obligation now before us.

The action which is the foundation of the present case was brought to recover the arrears of an annuity, which the executor and residuary legatee paid for fifteen years, as it is averred and admitted in the pleadings, in pursuance of the condition of the bond to pay debts and legacies.

It is now, after such a lapse of time — after the estate has much of it perhaps changed owners — after some part of it must have perished by natural decay, and when possibly but a smqll portion, if any, of it exists in the same state that it was at the decease of the testator, — that an objection is taken that the bond thus given is wholly void, and of no force to secure any thing which was intended ; — and the result of the objection, if sustained, would be to render nugatory all that has been done ; and as our statute provides that the executor shall not intermeddle with the estate until he has given bond, Nathaniel Gilman, who has acted as rightful executor, must in such case be deemed an executor in his own wrong, an administration must be granted, an inventory taken of what can be found, in such condition as it may exist,‘and proceedings be had to settle what for twenty years has been supposed to be settled.

Still, if by the plain and positive provisions of law this instrument was void in its creation, we must so hold it, without regard to the consequences which would follow that decision. It is argued that the bond is invalid because, as is alleged, Nathaniel Gilman was not residuary legatee absolutely, but only upon condition — that the heirs at law have a possible interest — that the bond furnishes no protection of their rights — and that a bond of this nature, therefore, was not authorized by law.

Whether the heirs have a contingent interest or not depends upon the construction to he given to the residuary clause in the will. Upon this matter the law is well settled. The court is bound to made such a construction as will make good the plain intentions of the testator, provided there are words in the will for it, or it can be done consistently with the rules of law, 1 Ves. Sen’r, 422 ; 3 Atk. 318; 1 Wils. 106; 1 N. H. R. 427. Emery eta. Judge'Sobate The allegation that Nathaniel Gilman is not residuary legatee, absolutely, is founded on an erroneous construction of the terms of the will.

After giving him certain real estate, the will gives him “ also my carriages, trunks, desks, ‘•'books, maps, guns, swords, pistols, papers and wearing “apparel, and all my other estate, real, personal and mixed, “ not otherwise disposed of, on the condition following, that “is to say — The money and bank and insurance stock, or “public stock of any kind, remaining in his hands after all “ payments herein provided for shall have been made, shall “ be kept separate and distinct from his other estate, and the “ interest or income only taken to his use, the principal sum “ being intended for and given to his children, to be distrib- “ uted among them after his decease, in such proportion as “ he may direct.” All the residue of the estate, then, except the money and - stocks, was to be his own.

By money must have been intended the money on hand, or to be collected from debts, as there is no provision that he was to sell the carriages, trunks, &c. or any of the personal property. It is said that this whole devise was upon condition, and so is the phrase in the will; but what was the meaning of the testator in the use of this term ? Was it if he failed to keep the money and stocks separate, and to take only the income, that all the property comprehended in the residuary clause should be forfeited.

It certainly was not upon a condition precedent, because as to all the residue except the money and stocks he was to come into possession at once as the owner; and there is nothing in the whole will, except this word “ condition,” to show that any forfeiture was intended at any time. If there was any condition intended it must be a condition subsequent. But taking the whole language of the will together, could that have been the intention ? Much of the property thus bequeathed to Nathaniel Gil-man for his own use, would probably wear out and be consumed.

Was it intended that this should be forfeited by a subsequent neglect to keep the money and stock separate, or by using a part of the principal ? If so, would the forfeiture relate back, and the legacy be void ab initio by the subsequent nonperformance ? Again — among the articles enumerated in the residuary clause, are guns, swords, pistols, books, papers, and wearing apparel.

Is there any reason for a belief that the testator intended to give articles of this character upon a technical condition, that the right and possession should be forfeited by any subsequent neglect on the part of one who evidently possessed his full confidence ? If Nathaniel Gilman failed to keep the money and stocks separate, and to take only the income, this might not be discovered until his decease : and was there in such case a forfeiture intended of the guns, papers, and wearing apparel, for the benefit of the heirs, of whom he himself is understood to have been one.

If this clause in the will constitutes a technical condition, it might well admit of question whether that condition does not include the real estate devised to Nathaniel Gilman. Was it intended that this also should be subject to forfeiture ?

We are of opinion that no forfeiture could have been intended, because the term used does not necessarily imply such intention; the testator evidently intended to dispose of his whole estate, and he did not provide in terms that a forfeiture should accrue by reason of any neglect, or make any bequest or limitation over upon any such contingency; because property perishable in its nature, and of a character not likely to be included in a technical condition, is given to the executor for his own use — and because the money and stocks, which are to be distributed among the children of Nathaniel Gilman, on his decease, in such proportion as he may direct, are equally within the terms of the clause alleged to be conditional as the property which he was to take as his own.

Was it intended, if Nathaniel Gilman failed to keep the money and stocks separate from his own estate, that they should also be forfeited, and instead of going to the children, on his decease, go to the heirs ? There can hardly be a reasonable doubt as to the intention of the testator in this respect. The term condition was not intended to make a technical condition, which might result in a forfeiture for the benefit of the heirs in general.

The clause is equivalent to a devise or bequest of all the residue of his estate to Nathaniel Gilman, upon the terms, or in the manner following, that is to say, that he shall take only interest or income of the money and stocks, keeping them separate during his life ; and that the principal shall, at his decease, be divided among his children, in such proportion as he shall direct. ; the rest of the residue being intended to be absolutely at his ownership and disposal.

This seems to us to be a sound exposition of this provision of the will, and according to what must have been the intention of the testator, as drawn from its entire contents. Nathaniel Gilman then was residuary legatee, absolutely : and he had also an interest for life in the money and stocks, the principal of which is to be distributed, on his decease, among his children. Of course the heirs have no conditional interest in the residuum. Have the heirs any contingent interest arising in any other way from the provisions of this will ?

There is in the will a bequest of >$1000, to build a fence around the meeting house, provided a union of the two parishes takes place in the lifetime of either of the executors, and not otherwise. If this does not take place it falls into the residuum. The title to this $1000 did not vest absolutely in the residuary legatee, on the giving of the bond, and yet it can form no objection to taking a bond of this character. If the condition is complied with, the bond secures it according to the bequest; if not, the residuary legatee takes it. 2 Ves. Sen’r. 285, Jackson vs. Kelly; 4 Ves. 802, Kennell vs.

Abbot ; 8 Ves. 25, Cambridge vs. Row; 15 Ves. 589 ; 2 Williams on Exrs. 895; 1 Rob. on Wills 444. Another question suggests itself. Can the children of Nathaniel Gilman take any thing by this will, except through an appointment by their father ? If they cannot, and he has failed, or shall fail to make an apportionment, then for want of an execution of the power, the intended bounty to them might fail, the legacy lapse, and the heirs have an interest in that way, — for this cannot fall into the residuum.

The father has his lifetime in which to execute the power, and cannot take the principal to himself under the will. To hold that if he made no apportionment it would fall into the residuum, would be to hold that his neglect to carry into effect the intention of the testator would vest the property absolutely in himself. It is evident that it was not intended for him, and equally evident that it was not intended to go to the heirs of the testator.

The authorities show that the property will pass to the children without an apportionment by the father; and in such case they will take equal portions. 1 Atk. 469, Harding vs. Glynn ; 4 Ves. 709; 5 ditto 495 ; 8 ditto 561, Brown vs. Higgs ; 3 Ves. & Beance 198, Birch vs. Wade; 1 Ves. Jun. 149 ; 1 Taunt. 289 ; 9 Ves. 319, Cruwys vs. Colman. There is a distinction between a mere power, and a power coupled with a trust. If it is a mere power of appointment, nothing vests until the power is executed.

If a trust is created, the beneficial interest vests in the objects of the trust, subject to be devested by the execution of the power. In this case the legacy vested in the children, subject to the right of the father to apportion it among them. All the cases seem to admit that where the intention appears, as in this case, to give to them absolutely, it constitutes a trust. 2 Ves. Sen'r. 61, Duke of Marlborough vs. Godolphin; 1 Ves. Jr. 270, Bull vs. Vardy.

In the view we have taken of the case we have not found it necessary to decide whether, in case the heirs at law had had a contingent interest this bond might not have been a lawful obligation, and effectual for their benefit, so that they could by virtue of it have compelled the payment of whatever might have accrued to them. Another question has been considered. The interest of the children is of uncertain amount. Does that prevent the judge of probate from taking a bond of this character ?

Would it render the clause in the statute providing for bonds of this description inoperative, in such case, and this bond void ? There might be a convenience to them in having an inventory, so far as their interest extends, and an account settled. But this is not enough. They take through the will, and must take according to the manner provided by it. The testator has not by the will provided for an inventory or an account in the probate office. Do the rules of law require it in such case ? In 5 Johns. C. R. 349, Westcott vs.

Cady, the Chancellor held that the legatee in remainder, after an estate for life, might call upon the legatee for life for an inventory of the property devised, to be filed, and so are other authorities. 1 P. Wms. 6, note; 3 ditto 336 ; 5 N. H. Rep. 327. But it is to be noted that this is not an inventory of the estate generally, but only of that

part in which the legatee m remainder has an interest. 1 P. Wms. 6, Shirley vs. Ferrers, in note. And according to the authorities it is not the duty of the executor to make such inventory, but the duty of the legatee for life. 3 P. Wms., Slanning vs. Style, where the widow who was to sign the inventory Was not executrix.

If this be so, that such inventory is to be partial only, and it is the duty of the legatee to make it, then this case can furnish no objection against the bond given in this case ; for although the legatee for life is here executor also, the duty of making the inventory is not one which devolves upon him as executor, and it cannot be held that it thereby became the duty of the judge to take a bond which should compel an inventory of the whole, and a settlement in a different mode of the whole estate.

Farther — this bond requires the principal to discharge the trust of executor, agreeably to the tenor and effect of the will and the rules and directions of law, relative to the duty of said office and trust; and although the statute speaks of a bond to pay the debts and legacies only, we see no objection to this clause, in a bond under the statute, in connexion with a clause to pay debts and legacies ; and if none, it binds him to do generally all things which devolve upon him as executor ; and if making out an inventory of the trust estate was one of those duties, it is provided for.

Whether this bond secures the interest of the children of Nathaniel Gilman, or not, is a question not involved in this case. If it does not, it is because the testator gave in such a manner that no bond was required of the executor to secure that interest; and if so, a bond in common form to return an inventory, &c., which it is contended ought to have been taken, would not have enured to their benefit. Judgment affirmed.