EnbswoKtH, J.
This is an application by one of the trustees of the will of the late Samuel Parsons, to ascertain what is the line of his duty touching certain trusts provided for in the will.
[515]*515We have carefully examined the instrument, comparing the provisions with each other, (which we think are clearly and fully expressed,) and are satisfied that we shall best carry out the intention of Mr. Parsons by designating for the trustees the course hereinafter prescribed.
The purport of the will is of course to be learned from the language of the instrument itself, comparing its parts and provisions with each other. We may and indeed we ought to take into consideration the surrounding facts and circumstances, or, as is sometimes said, put ourselves in the place of the testator, that we may the better interpret and apply the provisions of the will to the subject as it lay in the testator’s mind. But, as we have said, the language of the will must be our rule, for we can not admit of a parol will, nor can we allow language to be construed otherwise than in its common acceptation. We may with propriety consider that the testator was aware that he was about disposing of a large estate among children of a tender age, who, from their want of experience, would need the care and supervision of others for several years, and respecting whom a parent might be solicitous as to the consequences which great and sudden wealth might produce on their welfare, and especially with regard to his daughters, who he knew might in the course of events be exposed to lose the money intended for their individual support and eomfort, whether it should be their pleasure to marry or remain unmarried. But after giving due weight to every fact and argument as to the true interpretation of this will, which so clearly expresses the ruling purpose of the testator, we entertain no doubt how the will is to be understood and what is the duty of the trustees in carrying it into execution.
Our construction or the will is this :
After the devise to Mrs. Parsons of the dwelling house, with the furniture, books, carriages, farming utensils, and provisions, and a piano forte to his daughter Catharine, the testator directs that all the rest and residue of his estate (some $>140,000) shall go to his trustees, and at an early day, (with some trifling exceptions not important to notice,) be [516]*516converted into cash, and made to constitute a “general fund,” which is spoken of and recognized as such throughout the whole will.
The trustees are further empowered to invest and re-invest the property, from time to time, as they shall find necessary for the interest of the estate. They are to invest the whole in some safe interest paying stocks, national or state, and some few banks of undoubted character and credit, until such funds are wanted to fulfill the provisions of the will.
The corpus of the estate, and whatever grows out of or is added to it by interest, rents, or accumulation, we think go into the “general fund” to answer the. provisions of the will.
This fund we think is to be single, kept in one account, and one rule is to be applied in the management of it, as well as in the investments and disbursements. The trustees are directed to rent the real estate in the city of New York until it can be judiciously sold, and in the mean time the rents are to go into the “ general fund,” as is all the interest on existing and future investments.
No distinction is made between the corpus of the estate, and interest or rents or whatever shall accrue from the estate. This obviously is the intention of the testator, as well as the natural and legal consequence of what he has positively ordered to be done, and we can not but express our surprise that a distinction is asked to be made between the corpus of the estate (or the “ general fund,”) and its interest or increment, when the distinction is no where hinted at in the entire will, and is inconsistent with its special provisions and its general tenor and spirit.
It is incredible that Mr. Parsons should have overlooked this so important a consideration, in a will which is a model of carefulness and exactness. The whole of the “ rest and residue of the estate ” constitutes an indiscriminate and indivisible fund, until the appropriations are wanted for the purposes of the will, which appropriations are to be made under and in pursuance of the will, and not upon an hypothesis of rights by inheritance or distribution, or by inferences [517]*517of law that the future increase of the estate under the management of the trustees is to be delivered over by them and take a different direction from the rest of the estate, or to be paid out otherwise than as is directed by the testator in his will. And further, we apprehend that the trustees of the general fund owe no duties to the children outside of the directions in the will. As executors they are to hold nothing for the devisees, but are to take as trustees only, in order that their discretion may regulate the investments and payments, especially the biennial payments, respecting most of which there is a contingency, which forbids the idea that the accruing interest is absolutely vested and to be paid over to the children whether the trustees think it will advance or destroy their happiness.
It is true indeed that the first clause of the 5th section of the will gives the property to the children, but it is in trust, and this trust is qualified and regulated by the provisions which follow, and these we may not overlook in order to remove the property or any part of it, from the control and discretion of the trustees, who shared so largely the confidence of Mr. Parsons.
There is no principle of law that requires us to regard exclusively this particular clause, but such a course is inconsistent with all the cases. The whole will must be read together in order to know how it is to be understood and applied. This we hold is very clear; and nothing but the most technical reasoning, and an undue weight given to this clause of the will by itself, can bring our minds to doubt the soundness of the views already expressed.
We might add that the will, in so many words, declares that whatever the executors shall receive from bills of exchange or promissory notes, (including of course interest already due and that might thereafter accrue upon them,) and from “ any and all other funds,” shall make a part of the “ general fund ” to be administered by the trustees.
Something may be learned as to the proper construction of the will from the manner in which the trustees are to pro[518]*518ceed in paying from the fund, from time to time, in fulfillment of the provisions of the will. These payments we conceive are to be made out of the accruing interest and rents, as well as out of any other part of the fund. First, the widow is to be paid each year, so long as she remains unmarried, $700 out of the general fund. Next, out of this fund, the children are to be provided for and educated by the trustees, until they are respectively twenty-one years of age. Are they, in addition, to be paid annually the accruing rents and interest on their respective shares ?—a sum which will be very large, and must necessarily pass into the hands of guardians to be appointed by the courts, that it may be securely invested, kept and accounted for by them, and out of the hands of the trustees, in whom Mr.
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EnbswoKtH, J.
This is an application by one of the trustees of the will of the late Samuel Parsons, to ascertain what is the line of his duty touching certain trusts provided for in the will.
[515]*515We have carefully examined the instrument, comparing the provisions with each other, (which we think are clearly and fully expressed,) and are satisfied that we shall best carry out the intention of Mr. Parsons by designating for the trustees the course hereinafter prescribed.
The purport of the will is of course to be learned from the language of the instrument itself, comparing its parts and provisions with each other. We may and indeed we ought to take into consideration the surrounding facts and circumstances, or, as is sometimes said, put ourselves in the place of the testator, that we may the better interpret and apply the provisions of the will to the subject as it lay in the testator’s mind. But, as we have said, the language of the will must be our rule, for we can not admit of a parol will, nor can we allow language to be construed otherwise than in its common acceptation. We may with propriety consider that the testator was aware that he was about disposing of a large estate among children of a tender age, who, from their want of experience, would need the care and supervision of others for several years, and respecting whom a parent might be solicitous as to the consequences which great and sudden wealth might produce on their welfare, and especially with regard to his daughters, who he knew might in the course of events be exposed to lose the money intended for their individual support and eomfort, whether it should be their pleasure to marry or remain unmarried. But after giving due weight to every fact and argument as to the true interpretation of this will, which so clearly expresses the ruling purpose of the testator, we entertain no doubt how the will is to be understood and what is the duty of the trustees in carrying it into execution.
Our construction or the will is this :
After the devise to Mrs. Parsons of the dwelling house, with the furniture, books, carriages, farming utensils, and provisions, and a piano forte to his daughter Catharine, the testator directs that all the rest and residue of his estate (some $>140,000) shall go to his trustees, and at an early day, (with some trifling exceptions not important to notice,) be [516]*516converted into cash, and made to constitute a “general fund,” which is spoken of and recognized as such throughout the whole will.
The trustees are further empowered to invest and re-invest the property, from time to time, as they shall find necessary for the interest of the estate. They are to invest the whole in some safe interest paying stocks, national or state, and some few banks of undoubted character and credit, until such funds are wanted to fulfill the provisions of the will.
The corpus of the estate, and whatever grows out of or is added to it by interest, rents, or accumulation, we think go into the “general fund” to answer the. provisions of the will.
This fund we think is to be single, kept in one account, and one rule is to be applied in the management of it, as well as in the investments and disbursements. The trustees are directed to rent the real estate in the city of New York until it can be judiciously sold, and in the mean time the rents are to go into the “ general fund,” as is all the interest on existing and future investments.
No distinction is made between the corpus of the estate, and interest or rents or whatever shall accrue from the estate. This obviously is the intention of the testator, as well as the natural and legal consequence of what he has positively ordered to be done, and we can not but express our surprise that a distinction is asked to be made between the corpus of the estate (or the “ general fund,”) and its interest or increment, when the distinction is no where hinted at in the entire will, and is inconsistent with its special provisions and its general tenor and spirit.
It is incredible that Mr. Parsons should have overlooked this so important a consideration, in a will which is a model of carefulness and exactness. The whole of the “ rest and residue of the estate ” constitutes an indiscriminate and indivisible fund, until the appropriations are wanted for the purposes of the will, which appropriations are to be made under and in pursuance of the will, and not upon an hypothesis of rights by inheritance or distribution, or by inferences [517]*517of law that the future increase of the estate under the management of the trustees is to be delivered over by them and take a different direction from the rest of the estate, or to be paid out otherwise than as is directed by the testator in his will. And further, we apprehend that the trustees of the general fund owe no duties to the children outside of the directions in the will. As executors they are to hold nothing for the devisees, but are to take as trustees only, in order that their discretion may regulate the investments and payments, especially the biennial payments, respecting most of which there is a contingency, which forbids the idea that the accruing interest is absolutely vested and to be paid over to the children whether the trustees think it will advance or destroy their happiness.
It is true indeed that the first clause of the 5th section of the will gives the property to the children, but it is in trust, and this trust is qualified and regulated by the provisions which follow, and these we may not overlook in order to remove the property or any part of it, from the control and discretion of the trustees, who shared so largely the confidence of Mr. Parsons.
There is no principle of law that requires us to regard exclusively this particular clause, but such a course is inconsistent with all the cases. The whole will must be read together in order to know how it is to be understood and applied. This we hold is very clear; and nothing but the most technical reasoning, and an undue weight given to this clause of the will by itself, can bring our minds to doubt the soundness of the views already expressed.
We might add that the will, in so many words, declares that whatever the executors shall receive from bills of exchange or promissory notes, (including of course interest already due and that might thereafter accrue upon them,) and from “ any and all other funds,” shall make a part of the “ general fund ” to be administered by the trustees.
Something may be learned as to the proper construction of the will from the manner in which the trustees are to pro[518]*518ceed in paying from the fund, from time to time, in fulfillment of the provisions of the will. These payments we conceive are to be made out of the accruing interest and rents, as well as out of any other part of the fund. First, the widow is to be paid each year, so long as she remains unmarried, $700 out of the general fund. Next, out of this fund, the children are to be provided for and educated by the trustees, until they are respectively twenty-one years of age. Are they, in addition, to be paid annually the accruing rents and interest on their respective shares ?—a sum which will be very large, and must necessarily pass into the hands of guardians to be appointed by the courts, that it may be securely invested, kept and accounted for by them, and out of the hands of the trustees, in whom Mr. Parsons reposed special confidence; while, as we shall see, in looking at another part of the will, Mr. Parsons never intended that the daughters should, at any period of their lives, receive an amount exceeding $2,000 biennially; and even this is subject somewhat to the discretion of the trustees. Next, when the son is twenty-one years of age, he is to be paid out of the fund $5,000,—and $5,000 more if the trustees think it for his interest. When he is twenty-three, they may pay him $10,000 if they think it for his interest; and when he is twenty-five such sums as in their sound discretion they shall consider it most for his interest to receive, but not exceeding in any one year $10,000 ; and so on. Is the son, besides this, to receive annually the accruing interest on his share? We think not. Next, the daughters, when they attain the age of twenty-one, are to receive $2,000, and after that biennially $2,000, under a discretion in the trustees, but never to exceed at the rate of a thousand dollars a year, and this is to be to their sole and exclusive use. One thousand dollars a year, we think Mr. Parsons fixed as the maximum, to be paid to his daughters respectively. He had given his widow $700 annually, and doubtless thought $1,000 a year was a proper sum for a daughter, and with all possible affection for and confidence in his children, he might have had, we can imagine, prudential reasons for such limitations as he has prescribed.
[519]*519But it is said that if this restriction is to be applied to the daughters’ shares, they may never receive their part of the estate during their lives. They may not, it is true, though it is possible that they will. We are not so confident however that the father expected that the children would receive the whole of the estate, for he has made provision for grandchildren, if any of it is left after the biennial payments are made under the discretion of the trustees.
It is again said that the shares of the children are vested estates, and that the accruing interest belongs to them as matter of pure law, and must be paid to them annually as distinct from any fiduciary trust or discretion in the trustees. We think this is not correct. A part only of the interest or estate which goes to the children can be said to be vested, and were it otherwise, it would not follow that the bequests are delivered from the personal control and discretion of the trustees. Everything must depend here upon the true construction of the will, and this brings us back to the question we have already been considering, so that we do not accede to the truth of either the premises or the conclusion of the reasoning of the respondents.
, Some other questions have been examined and very ably discussed in the arguments of counsel, which we have had no occasion to decide, and we prefer to confine our decision to the points expressed, answering, as we suppose we do, all the requests of the acting trustee for instructions in the execution of his trust.
It is the opinion and advice of this court, that, by the true construction of the will of said Samuel Parsons, the surplus annual income of the estate held in trust by his executors and trustees, after making provision for the payment of the annuity to the widow of the testator and of the annual charges of the executors and trustees for their services and expenses, should be, by the executors and trustees, retained and invested, and added yearly to the principal of the estate, until needed for the biennial payments to the children of the testator, as directed in the will, and should not be yearly [520]*520paid and distributed to the children in addition to the biennial payments to them; and that the superior court should declare accordingly.
In this opinion the other judges concurred.
[Note. The will, upon the construction of which the court has passed in the foregoing case, has been before the courts of the state of New York for construction. Before the present decision was rendered, Judge Bradford, the learned judge of the surrogate’s court of the city of New York, upon a proceeding before that court to compel the trustees to render their account of the assets within that state and to pay over to the legatees such sums as they should be found to be entitled to under the will, had given an" elaborate opinion, sustaining the claims of the present respondents. The present suit having however been instituted during the pendency of that proceeding before the surrogate, the decree was held in suspense until the opinion of this court should be given. After the present decision was rendered, the case was reargued before Judge Bradford, who however adhered to his former opinion and made a decree accordingly. From this judgment the principal trustee appealed to the supreme court, before which the case was argued in May, 1858, and which in October following rendered a judgment reversing the decree of the surrogate’s court in all respects and fully sustaining the opinion of our own court. Justice Clerke dissented and gave an opinion fully sustaining that of the surrogate. From this judgment the legatees appealed to the court of appeals, before which the case is now pending. The opinion of Judge Bradford may be found in 4 Bradfords’ Reps., 268. The decision of the supreme court has not yet been reported. As the case is not only important in itself, but has acquired a special interest from the facts above stated, I have given more space to the able arguments of the counsel than I feel at liberty generally to do. Reporter.]