The Chancellor :—I am satisfied from the will itself, without reference to the memorandums found therewith, that the intention of the testator was, to give to his granddaughter Mary Theresa an annuity of $300 only, during the life of her grand-mother; and on her decease to add to it one-third of the legacy given to the latter, thereby increasing it to $700.
The proper rule of construction in the case of wills, is to give effect to the intention of the testator, if such intention can be discovered from the whole will taken together, and the same is not inconsistent with the rules of law. (Wyatt v. Sadler's heirs, 1 Munf. 537.) And where such intent is plainly discoverable, the court, in order to give effect thereto, frequently rejects the strict grammatical sense of the language employed by the testator.
The first annuity of $300 to Mary Theresa,was undoubtedly the one intended to commence from his death. And in the subsequent clause, in which he directs, “ that from and after my death and decease, the further sum of $400 per annum will commence and be added thereto,” the testator has evidently substituted his own death for that of his wife; for he had before declared, that after the death of his wife, the $1,200 should be equally divided between Mary Theresa and her two aunts. And this is undoubtedly the same $400 which he directs to be “ added to her annuity;” for he then goes on further and says, “ making together $700 per annum, during her life.” If he had intended the [344] $400 as the annuity *to commence at his death, he would not have directed it, at that time, to be added to the annuity which was to commence afterwards. He could not have intended to give two $400 legacies, one commencing at his own death, and the other on the death of his wife, because one of them is mentioned as $300 only. And both, when added together, are by him declared to amount to $700. By the grammatical construction of the language used by the testator, the $300 annuity is not described as the third part of the annuity of the grand-mother, which he directs to be divided on her death. This part of the will is certainly very obscure, but I think sufficient appears to show the testator’s intent without looking beyond it. If it will not bear this construction, and the written memorandums of the testator cannot be resorted to for the purpose of explaining his intention, the court might be compelled to reject the whole of the annuities to Mary Theresa, as being void for uncertainty.
There is no ground for the claim put in by Mary Theresa for an additional legacy of $200, from the death of the testator, under that clause of the will which gives such legacies to each and all of his grand-daughters. Although the general description of the legatees would include her also, yet it is evident he did not intend her as one of them; because in the next clause he directs that those legatees should take their annuities, subject to the same restrictions as those which were imposed in relation to the legacies given to “their aunts and sister Mary Theresa.”
The next question is as to the limitations over of the annuities to Mary Theresa and the grand-daughters, which must be understood to mean those in existence at the death of the testator. And here it may be proper to observe that this will is so obscurely and inartificially drawn, that it is impossible to ascertain, with any degree of certainty, what was the real intention of the testator. The several bequests must therefore be construed according to the legal effect of the terms employed. It appears to have been the [345] general object of the testator to make personal property unalienable. That not being allowable, the construction of some parts of the will must, of course, be contrary to his intention. Annuities *given by will, although payable out of the personal estate, or out of the general funds of the testator, are generally construed and governed by the principles which are applicable to a devise of real estate. Thus, if an annuity is given to a man and his heirs in perpetuity, he has an absolute interest therein; and the only way of satisfying it is by setting aside such sum as will forever answer it; and the annuitant is entitled to the absolute disposition of the fund so set aside. (Smith v. Pybus, 9 Ves. 567. (If it is given to a man and the heirs of his body, it is in the nature of estate tail; but the annuity cannot be barred by a common recovery as a real estate can. (Doct. & Stud. Dial. 1, ch. 30; and per Lord Loughborough, 1 Brown’s Ch. Rep. 319.) Therefore, to prevent a perpetuity, the common law gives to the annuitant an absolute interest ; and the effect is precisely the same as that produced by our statute abolishing entails upon a devise of real property in tail. Upon the same principles, a limitation over of the annuity upon an indefinite failure of issue is void, as depending upon too remote a contingency. (Seale v. Seale, Prec. in Ch. 421; 1 P. Wms. 290, S. C.; Bodens v. Watson, Amb. 398, 478; Robinson v. Fitzherbert, 2 Bro. Ch. Rep. 127.) But if the failure of issue is confined to the death of the annuitant, the limitation over is good, as being in the nature of an executory devise. (Shepherd v. Lessingham, Amb. 122; 13 Ves. 484; 6 Bro. P. C. 318.)
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The Chancellor :—I am satisfied from the will itself, without reference to the memorandums found therewith, that the intention of the testator was, to give to his granddaughter Mary Theresa an annuity of $300 only, during the life of her grand-mother; and on her decease to add to it one-third of the legacy given to the latter, thereby increasing it to $700.
The proper rule of construction in the case of wills, is to give effect to the intention of the testator, if such intention can be discovered from the whole will taken together, and the same is not inconsistent with the rules of law. (Wyatt v. Sadler's heirs, 1 Munf. 537.) And where such intent is plainly discoverable, the court, in order to give effect thereto, frequently rejects the strict grammatical sense of the language employed by the testator.
The first annuity of $300 to Mary Theresa,was undoubtedly the one intended to commence from his death. And in the subsequent clause, in which he directs, “ that from and after my death and decease, the further sum of $400 per annum will commence and be added thereto,” the testator has evidently substituted his own death for that of his wife; for he had before declared, that after the death of his wife, the $1,200 should be equally divided between Mary Theresa and her two aunts. And this is undoubtedly the same $400 which he directs to be “ added to her annuity;” for he then goes on further and says, “ making together $700 per annum, during her life.” If he had intended the [344] $400 as the annuity *to commence at his death, he would not have directed it, at that time, to be added to the annuity which was to commence afterwards. He could not have intended to give two $400 legacies, one commencing at his own death, and the other on the death of his wife, because one of them is mentioned as $300 only. And both, when added together, are by him declared to amount to $700. By the grammatical construction of the language used by the testator, the $300 annuity is not described as the third part of the annuity of the grand-mother, which he directs to be divided on her death. This part of the will is certainly very obscure, but I think sufficient appears to show the testator’s intent without looking beyond it. If it will not bear this construction, and the written memorandums of the testator cannot be resorted to for the purpose of explaining his intention, the court might be compelled to reject the whole of the annuities to Mary Theresa, as being void for uncertainty.
There is no ground for the claim put in by Mary Theresa for an additional legacy of $200, from the death of the testator, under that clause of the will which gives such legacies to each and all of his grand-daughters. Although the general description of the legatees would include her also, yet it is evident he did not intend her as one of them; because in the next clause he directs that those legatees should take their annuities, subject to the same restrictions as those which were imposed in relation to the legacies given to “their aunts and sister Mary Theresa.”
The next question is as to the limitations over of the annuities to Mary Theresa and the grand-daughters, which must be understood to mean those in existence at the death of the testator. And here it may be proper to observe that this will is so obscurely and inartificially drawn, that it is impossible to ascertain, with any degree of certainty, what was the real intention of the testator. The several bequests must therefore be construed according to the legal effect of the terms employed. It appears to have been the [345] general object of the testator to make personal property unalienable. That not being allowable, the construction of some parts of the will must, of course, be contrary to his intention. Annuities *given by will, although payable out of the personal estate, or out of the general funds of the testator, are generally construed and governed by the principles which are applicable to a devise of real estate. Thus, if an annuity is given to a man and his heirs in perpetuity, he has an absolute interest therein; and the only way of satisfying it is by setting aside such sum as will forever answer it; and the annuitant is entitled to the absolute disposition of the fund so set aside. (Smith v. Pybus, 9 Ves. 567. (If it is given to a man and the heirs of his body, it is in the nature of estate tail; but the annuity cannot be barred by a common recovery as a real estate can. (Doct. & Stud. Dial. 1, ch. 30; and per Lord Loughborough, 1 Brown’s Ch. Rep. 319.) Therefore, to prevent a perpetuity, the common law gives to the annuitant an absolute interest ; and the effect is precisely the same as that produced by our statute abolishing entails upon a devise of real property in tail. Upon the same principles, a limitation over of the annuity upon an indefinite failure of issue is void, as depending upon too remote a contingency. (Seale v. Seale, Prec. in Ch. 421; 1 P. Wms. 290, S. C.; Bodens v. Watson, Amb. 398, 478; Robinson v. Fitzherbert, 2 Bro. Ch. Rep. 127.) But if the failure of issue is confined to the death of the annuitant, the limitation over is good, as being in the nature of an executory devise. (Shepherd v. Lessingham, Amb. 122; 13 Ves. 484; 6 Bro. P. C. 318.)
The limitation over of the annuity to Mary Theresa is not upon an indefinite failure of issue, but upon the contingency of her dying without issue living at the time of her death. Therefore, upon the principle of the case of Wilkes v. Lyon, (2 Cowen, 333,) she is entitled to the same in perpetuity ; subject, however, to the contingency of her dying before the other grand-daughters, and without issue living at the time of her death. And she is not entitled to the [346] absolute control of the fund set apart for the purpose of raising that annuity, until it is ascertained that the limitation over cannot take place. The $200 annuities to the other grand-daughters are also in perpetuity, but the whole goes to- the survivor, if either dies in the life time of the other without *issue living at the time of her death. The true construction of-the will is, that the executors take the whole estate, with power to sell the same for the purpose of the will; subjebt, however, to his restriction, that the widow is entitled to the possession of the dwelling house in Broadway during her natural life, or so long as she thinks proper to reside there. The specific legacies must first be satisfied, and a sufficient sum appropriated to pay the ground rent, taxes, assessments and necessary repairs of the house and lot in Broadway. If there is not sufficient property to raise and pay all the annuities, the clause of priority in the will requires the $1,200 annuity to the widow, with its several remainders over, to be first provided for; then the two $500 annuities to the daughters, and after that the $300 annuity to Mary Theresa. The $200 legacies to the other' grand-daughters must be postponed to all these; and if there is any abatement, 'it must be in the several classes only. A sufficient sum must therefore be appropriated to purchase an annuity of $400 during the joint lives of the widow and Mrs. Scheiffelin, and a like annuity during the joint lives of the widow and of Mrs. McKesson;' and another annuity of $400 in perpetuity. The whole of these annuities must be paid to the widow for life; and after her decease, the first annuity must be paid to Mrs. Scheiffelin, the second to Mrs. McKesson, and the third to Mary Theresa, during their respective lives; and after the death of Mary Theresa, if she shall survive the other grand-daughters and leave issue, the latter annuity, or the fund set apart for the payment thereof, must be transferred to her legal representatives ; but if she dies before the- other grand-doughters, or either of them, and without issue, then it is to go to those grand-daughters, or such of them as are then living, [347] in perpetuity. After providing for those annuities, another sum must then be appropriated to purchase two annuities of $500 each, one for the life of Mrs. Scheiffelin, and the other for the life of her sister, and to be paid to them respectively according to the directions of the will. A further sum must then be set apart to purchase an annuity of $300 in perpetuity, to be paid to Mary Theresa for life, including arrears from the death of the testator, and to be disposed of after her *death in the same manner that the $400 annuity in perpetuity is herein directed to be disposed of; and out of the residue of the estate a further sum must then be appropriated, sufficient to purchase two perpetual annuities of $200 each, for the other grand-daughters of the testator, to be paid to them respectively, or to accumulate for their benefit from the death of the testator during their natural lives. And if either of them die during the lifetime of the other without leaving issue then living, the whole to go to the survivor in perpetuity; but if either dies without issue during the life of the other, their respective annuities, on the death of each, are to go to their legal representatives in perpetuity. After providing for these several annuities, the residue of the property must be appropriated for the use of the grand-sons who were in existence at the death of the testator, or their legal representatives, in the manner mentioned in the will.
A decree must therefore be entered, declaring the construction of the will as above stated, and directing the executors to appropriate the real and personal property of the testator to raise and pay the annuities and legacies according to this construction. They are also to have their costs of this suit out of the estate.