Helme v. Strater

52 N.J. Eq. 591

• Court: New Jersey Court of Chancery
• Decided: May 15, 1894
• Status: Published

Opinion

The Chancellor.

The complainants ask instruction upon these questions:

First. Whether Margaret A. Helme, the widow of George W. Helme, is entitled to dower in any part or parts of his estate,, and, if so, in what part or parts.

Second. Whether the agreement of October 1st, 1889, between-George W. Helme, George A. Helme and John W. Herbert,. Jr., shall be carried out by them, and, if so, by what calculation-the amount of net earnings, which is to furnish the basis for the distribution of stock, shall be ascertained.

'Third. Whether the dividends.upon that part of the stock of the George W. Helme Company which will remain in the hands' of the executors, subject to the operation of the agreement of October 1st, 1889, are to be wholly paid to the life tenants of the residue of the testator’s estate or some part of them accumulated for those who shall take in remainder.

I will deal with the questions in the order in which they have-been stated.

As to the first question. It is observed that, by the eighth paragraph of the will, the testator devised to his wife his homestead at Helmetta. If the will had made no reference to the-dower right of.the widow, it is clear that the statute {Rev. p. 822 § 16), in absence of dissent in the manner contemplated by it,, would bar the widow of her dower in the testator’s entire real estate.

But considered without regard to this statute, what is the legal status ? The scheme-of the will is to first make specific provision for the wife and three children of the testator. They are each to participate in his life insurance, and, except his daughter Olivia, in his stock in the George W. Helme Company. The daughter Olivia and the wife are to take independent gifts of real estate. Then the whole residue of the estate is to be disposed of. The wife is to take one-fourth of it in fee, and the three children the remaining three-fourths through a trust established for the benefit of them and their issue. There are-four principal objects of the testator’s bounty — his wife and his-three children — and it is conspicuous that, in the disposition of the residue of his estate, it was his intention that they should participate equally, at least in the usufruct of that residue. One-fourth was to go to the widow and one-third of the three remaining fourths to each child. It is inconsistent with and repugnant to that intention that the widow shall, in addition to her fourth, take dower also in the real estate which composes part of the remaining three-fourths. If she should take such dower the equality of the intended distribution would be destroyed. The law requires that, under such a will, the widow shall elect between its provisions for her and her dower right, the implication being that the provisions for her were intended to be made in lieu of dower. Griggs v. Veghte, 2 Dick. Ch. Rep. 179; Chambers v. Storil, 2 Ves. & B. 224; Dickson v. Robinson, 1 Jac. 503; Roberts v. Smith, 1 Sm. & S. 513; Goodfellow v. Goodfellow, 18 Beav. 356; Reynolds v. Torin, 1 Russ. 129; Adsit v. Adsit, 2 Johns. Ch. 448; Stark v. Hunton, Sax. 216; 4 Kent Com. 56; White v. White, 1 Harr. 202; Smith v. Kniskern, 4 Johns. Ch. 9; Sanford v. Jackson, 10 Paige 266; Colgate v. Colgate, 8 C. E. Gr. 372; Stewart v. Stewart, 4 Stew. Eq. 398; Endicott v. Endicott, 14 Stew. Eq. 93; Brokaw v. Brokaw, 14 Stew. Eq. 308.

But we find, in the fourteenth paragraph of the present will, the testator’s express declaration that his provisions for his wife are intended to be in lieu and bar of dower in certain real estate, to wit, that which is mentioned in the ninth, tenth, eleventh and twelfth paragraphs of the will, and, under the maxim expressio unius est exclusio alterius, it is insisted that the implication is that she is to take dower in real estate disposed of by all other paragraphs. When those paragraphs are examined, it is perceived that the ninth refers exclusively to stock of the George W. Helme Company bequeathed to the testator’s daughter Adeline, the tenth to real estate devised to his daughter Olivia, the eleventh to stock in the George W. Helme Company given to his son, and the twelfth to the fourth of the residue of his estate which is given and devised to his widow. In two of the paragraphs, no real estate is mentioned, and in one of the remaining paragraphs the fee in the real estate is given to the widow. Obviously there is a mistake in this enumeration of paragraphs. The only paragraphs of the will which dispose of real estate are the eighth, tenth, twelfth and thirteenth, and two of those — the eighth and twelfth — devise to the widow in fee. How the mistake arose, whether by transcription from a former will or otherwise, is not apparent. A provision for the revocation of former wills exhibits that such documents existed, and thus, to that extent, lends credence to the conjecture that the error was one of transcription.

Concluding that-there is an error in the fourteenth paragraph, so far as the designation of the real estate in which the widow is not to take dower is concerned, we are left, by that paragraph,' in this condition : we know that the widow was to be excluded from some of her dower, but, by implication, not from all of it, and we know nothing more. In this situation we turn to the testator’s scheme of equality, between his widow and children, in the disposition of the residue of his estate and to the implication which arises therefrom, that the widow shall not have dower in the real estate which, under that disposition, is to go to the children — that is, the real estate disposed of by the thirteenth paragraph of the will. That implication remains in full force, and is not overridden by the indefinite and uncertain implication which arises from the erroneous fourteenth paragraph. It induces the conclusion, upon the whole will, that the testator’s intention was that his widow shall not take dower in the lands disposed of by the thirteenth paragraph.

It is not necessary, in the instructions of the complainants, that I shall consider or determine more than that the widow does not take dower in the lands disposed of by the thirteenth paragraph. They have no duties to perform which concern any other lands than those contemplated in that section, and their right to ask instruction is limited by their necessity in the performance of their trust. Dill v. Wissner, 88 N. Y. 153, 160.

As to the second question. By its fifteenth paragraph, the will requires that the complainants shall hold the testator’s stock in the George W. Helme Company to enable them to perform the agreement of October 1st, 1889, between the testator and his son and Mr. Herbert, and apply it in that performance. "Whether or not the agreement was legally obligatory upon the testator, is not the question. This provision is of his bounty, if the agreement be not legally binding upon him.

The agreement was evidently the outgrowth of a desire of the testator to interest and engage his son and son-in-law in the business he had built up, so that that business might be maintained in his family as a source of perpetual profit. He had put the business in control of a corporation. He held nineteen-twentieths of the capital stock of that corporation and the remaining twentieth was owned by his family and employes. -He looked upon the company as his creature and his property. He conceived the plan that ultimately he, his son and Mr. Herbert should each own one-third of his nineteen-twentieths of the stock, and that they should all actively participate in the management of the business of the company. It was not his purpose that the young men should at once acquire the interest he intended to give them, because in that event they would not appreciate its value so fully as they would if the acquisition should be gradual and in a manner which would induce them, for a considerable time, to earnestly and vigorously exert themselves for the success of the business. He trusted that during a prolonged exertion they would acquire interest, habits and capacity that would guarantee the perpetuation of the business for the benefit of himself in his old age and his estate after his death. With this apparent purpose in view, he agreed with them that they should give their undivided attention to the business of the company until they should each acquire a one-third interest in his four thousand seven hundred and fifty shares of stock. During that time they were each to receive from the company a salary of $4,000 a year, one as vice-president and the other as treasurer. He and they were each to build and occupy a dwelling at Helmetta, where the factory was and where their attention would not be distracted from the business. At the making up of each annual statement of the earnings of the company, one-third of the net earnings, “ less the dividends on the stock held by other parties,” was to be credited to each of the young men in an account created between the parties to the agreement for the purposes of their contract, and then, after the current year’s dividends on the testator’s stock should be paid, the testator was to transfer to them respectively as many shares of stock as the earnings credited to them respectively would absorb at $300 per share. Each party was to have an equal voice in the management of the business, but all important matters were to be referred to the father, who was “ to retain full control and general direction of the business interests of the company.”

The agreement is crude and inaccurate in its expressions, yet,. except in a single obscurity, it may be readily understood. That obscurity is as to the credit which is to be the basis for the transfers of stock. That credit is to be ascertained by taking the net earnings and deducting therefrom the dividends on the “ stock held by other parties.” This expression, “stock held by other parties,” occurs in the first recital of the agreement, which is intended to define how the credit is to be made up. The recital is, that George W. Helme owns four thousand seven hundred and fifty shares of stock, two-thirds of which he agrees to sell to his son and son-in-law, on the terms that they shall be entitled to one-third of the net earnings of the company, “ less the dividends on the stock held by other parties,” which shall go to purchase the two-thirds of the stock at the rate of $300 per share. What does the testator mean by “other parties?” Other parties than whom ? Other than the parties to the agreement ? Other than the son and son-in-law ? Other than George W. Helme ? The recital speaks for George W. Helme. It lays down his rule for the ascertainment of the earnings in which he is interesting the younger men. Those earnings are the earnings of his stock. His four thousand seven hundred and fifty shares do not constitute the whole stock of the' company, and its earnings or profits must be less than the profits of the whole capital stock by the proportion which the shares held by others than he bear to the whole capital stock. He assumes that the dividends will consume the earnings, .and, to ascertain the profits of his stock, he deducts from the whole net earnings of the company the dividends upon that part of the stock which he does not own. Thus, the credit he designed appears to be only the earnings of his own stock, and it follows that, as he transfers his stock to the young men, that which is transferred is to be thereafter considered as belonging to “ other parties ” and the dividends declared upon it deducted from the credit. And I understand the further'intent to be that' those dividends, at least so far as this ascertainment credit is concerned, shall be based upon the entire net earnings of the company.

This is hardly the grammatical construction of the sentence in which the enigmatical words occur, but it is not only what I conceive to be the underlying intent, but is also the practical construction which the parties to the agreement put upon it in. their settlement in February, 1893. In Chicago v. Sheldon, 9 Wall. 50, Mr. Justice Nelson stated, as a rule of construction of a contract, that “ in cases where the language used by the parties to the contract is indefinite or ambiguous, and hence of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling, influence. The interest of each generally leads him to a construction most favorable to himself, and when the difference has become serious and beyond amicable adjustment, it can be settled only by the arbitrament of law. But in an executory contract and where its execution necessarily involves a practical construction, if the minds of both parties concur there can be no great danger in the adoption of it by the court as the true one.” See, also, Topliff v. Topliff, 122 U. S. 121; District of Columbia v. Gallaher, 124 U. S. 505; Nearpass v. Newman, 106 N. Y. 47, 55; 1 Greenl. Ev. 293.

This rule has been frequently applied in this state where the description in grants of land are ambiguous or uncertain. Jackson v. Perrine, 6 Vr. 137; Den v. Van Houten, 2 Zab. 61; Opdyke v. Stephens, 4 Dutch. Southmayd v. McLaughlin, 9 C. E. Gr. 181; Baldwin v. Shannon, 14 Vr. 597; Camden and Atlantic Land Co. v. Lippincott, 16 Vr. 405.

Another consideration which should incline the court to act upon this practical construction, is the fact that the agreement is really the promise of a bounty from Mr. Helme crudely expressed, which should have the interpretation he put upon it and in which his son and son-in-law justly acquiesced.

The complainants will be instructed that the annual credit to George A. Helme and John W. Herbert, Jr., shall be ascertained by deducting from the net earnings of the company the dividends paid upon all stock not standing in the name of George W. Helme, or in the names of the executors of his will, or in the names of the legatees of the one-third of the stock which he bequeathed, their executors, administrators or assigns. Taking such credit as a basis for the distribution of the stock each year, they will transfer to George A. Helme and John W. Herbert, Jr., as many shares as the credit represents at $300 a sharé, first collecting the dividend of the stock transferred; provided, however, Messrs. George A. Helme and Herbert shall have devoted their whole attention to the business of the company during the year. This annual 'distribution shall continue until two-thirds of the four thousand seven hundred and fifty shares shall have been so transferred.

As to the third question. It is claimed, in behalf of the infant grandchildren of George W. Helme, that provision should be made to secure them benefit from the stock which is ultimately to be transferred under the agreement of October 1st, 1889. That stock, as has been seen, is to be held by the executors and applied to the performance of the agreement. Until the agreement is performed it remains the property of the testator and constitutes part of his residuary estate, three-fourths of which is ultimately to go to the grandchildren. It will gradually vanish from the residue as the agreement is being executed. The children of Mr. Helme are entitled to the income of three-fourths of the residue during their lives. Their lives may continue during the entire execution of the agreement and until the shares • in question shall be fully transferred and the income to the residue therefrom shall cease. In behalf of the infants, it is insisted that it is inequitable and unfair, in view of the fact that the testator evinces an intention that the whole of the residue of his estate shall be successively enjoyed by life tenants and remainderman, that the whole income of this vanishing asset shall go to the tenants for life.

Where a testator bequeaths the residue of his property without specific description, or, in other words, indicating an intention that it shall be enjoyed in specie, first to a tenant for life and then to a remainderman, and thus manifests that the same fund shall be successively enjoyed by both,' the necessary inference and established rule in equity are, that it must be invested as a permanent fund so that the successive takers shall enjoy it. in an equally productive capacity. But where it consists in whole or in part of property which is in its nature perishable, which for some reason cannot be converted into money or cannot be so -converted without great sacrifice of both principal and interest, the tenant for life will not be entitled to the annual product which the property thus perishing is actually making, but to interest from the testator’s death on the value thereof estimated as of that time. Howe v. Earl of Dartmouth, 7 Ves. 137; Gibson v. Bott, 7 Ves. 89; Fearns v. Young, 9 Ves. 549;. Meyer v. Simonsen, 5 De G. & S. 723; 21 L. J. Ch. 678; Brown v. Gellatly, L. R. 2 Ch. App. 751; Kinmonth v. Brigham, 5 Allen 270; Minot v. Thompson, 106 Mass. 583; Westcott v. Nickerson, 120 Mass. 410; Spear v. Tinkham, 2 Barb. Ch. 211; Healey v. Toppan, 45 N H. 243; 2 Wms. Ex. 1393; 2 White & T. Lead. Cas. 676 et seq. See, also, Howard v. Executors of Howard, 1 C. E. Gr. 486; Hull v. Eddy, 2 Gr. 169, 176; Ackerman’s Administrator v. Vreeland’s Executor, 1 McCart. 23, 27. The reason of this rule is the just consideration that the testator has the interest of the successive takers equally in view and intends that there shall be equality in their respective enjoyments.

I think that the rule is applicable to this case. The stock in question cannot be sold, for the testator expressly directs that it shall be held to answer a designated purpose, which, in all probability, will consume it within a few years. While it remains in the residue it will yield large dividends. It is, therefore, a valuable and at the same time a perishable' asset. The testator does not manifest an intention that it shall be enjoyed, in specie. It is not to be held for that purpose. It is swept into the residue by this general language, “the residue and remainder of my estate, both real and personal, of every name and description,” and no specific reference is made to its enjoyment while it is in the residue. The trustees are to collect the “ rents, issues, profits, dividends, interest and income of said trust fund ” and apply it to the life tenants’ use. Here words are used which are applicable to income from investments of every character which may enter into the aggregate mass with which the testator deals — that is, “ said trust fund.” They are not meant to prescribe the holding of the securities as the executors find them — in specie. They are to be taken together, as intended to give authority broad enough to enable the trustees to collect all income. That holding in specie for the benefit of the successive takers was not intended is manifested in the power given to the executors to hold or change the investments at discretion. As I have already said, the stock in question is not to be held for enjoyment in specie, but for another purpose. It is true that the wearing out of the value of the stock is contingent upon performance of the agreement by the son and son-in-law, but that contingency should not interfere with the application •of the rule. If the contingency should happen that they do not perform, any accumulation of surplus dividends in the hands -of the trustees will constitute a fund to enable the court to afford the life tenants their legal and equitable rights.

The value of the testator’s interest in the stock in question is not $300 for each share. ' His agreement with his son and son-in-law does not contemplate that he will receive that sum. That price is merely used as a factor in a mathematical calculation which is to control the distribution of the stock in question if the son and son-in-law perform the contract upon their part.

The value of the testator’s interest must be ascertained by reference to the probable value of the dividends in future upon the several shares of stock in question, until they shall be transferred.

It is, I think, impossible to define a rule which will accurately •determine the value of the stock in question to the testator’s estate at his death. It is uncertain what dividends will be paid upon it iu the future and how long any part of the stock will remain in the estate. Both these uncertainties are created by the fluctuations of the business of the company. Among the cases I have examined I have not found one presenting precisely this situation. Those which I have cited, which in other particulars are similar to this, were presented to the courts after the entire profits of the wearing-out asset had been realized by the trustees. In those cases the direction was to ascertain a sum which, 'if received at the testator’s death, would, with interest and’ making annual rests, amount to the sum actually received at the time it was received. That sum was to be invested as principal and the remainder of the sum actually received was distributed as income. In the present c&se but a single year’s profit has been received. What will be received in the future is unknown. It is out of the question to predicate the receipts of future years upon the receipts of the past year. They may be more or may be less. It will not do to wait until the entire profit shall have been realized, for such a delay would be a hardship to the life tenants. I therefore think it is proper that the rule stated should be applied to each dividend as it is received. The sum going to principal will be invested and the income from such” investment will go annually, together with the distributions from the several dividends, calculated according ■ to the rule, to the life tenants.