the trustees can not pay out any portion of the principal fund unless especially authorized to do so by the will. An annuity, however, is for a fixed amount, and even in the absence of specific direction, the executors or trustees may encroach on the corpus of the fund to make the payments.1 § 663. Time When Annuities Are Payable. Inasmuch as a will becomes effective immediately upon the testator's death, in the absence of provisions to the contrary, such event brings a general annuity into existence and the first installment thereof is payable within one year thereafter, or according to the time within which the installments regularly are to be paid.5 When, however, the annuity is a charge upon real estate, it has been said that it does not commence until the devisee is entitled to the possession," and this is especially true when such an intent of the testator may be drawn from the provisions of the will. When an annuity is charged by the will on the yearly income of certain lands, and is to continue for the life of the beneficiary, it is payable at the end of each year.8 § 664. Duration of Payment of Annuities. The duration of an annuity must be determined by the provisions of the will. The rule of construction is that 4 In re Kohler, 96 Misc. Rep. 433, 160 N. Y. Supp. 669. 5 Hawksworth v. Hawksworth, 27 Beav. 1; Gibson v. Bott, 7 Ves. Jun. 96. Simmons v. Hubbard, 50 Conn. 574; Wiggin v. Swett, 6 Metc. (47 Mass.) 194, 39 Am. Dec. 716; Sargent v. Sargent, 103 Mass. 297; II Com. on Wills-9 Cooke v. Meeker, 36 N. Y. 15; 6 Ager v. Pool, 3 Dyer 371 b, 73 Eng. Repr. 832; Hayes v. Whitall, 13 N. J. Eq. 241. 7 Hayes v. Whitall, 13 N. J. Eq. 241. 8 Henry v. Henderson, 81, Miss. 743, 63 L. R. A. 616, 33 So. 960. the intent of the testator must prevail, and the primary object of the court is to ascertain from the provisions of the will the length of time that the testator intended the annuity should be paid." When given without specifying its duration in any manner, and no contrary intent appears from the provisions of the will, the annuity will be presumed to be for life. § 665. From What Source Delinquent Installments of an Annuity May Be Collected. Where an annuity may be paid out of the corpus of a fund, in the absence of a failure of such fund no reason would exist for non-payment of the installment when due. An annuity may be charged upon the corpus of a fund, or it may be charged to the income from such fund, being a fixed amount to be paid at regular periods from such source. If any payments fall in arrears, such back pay 9 Davis v. People, 111 Ill. App. 207; Houghteling v. Stockbridge, 136 Mich. 544, 99 N. W. 759; Cleveland v. Cleveland, 89 Tex. 445, 35 S. W. 145. Where in the first part of the will certain annuities are given to named persons for life, but are not made a charge on the real estate, and from subsequent clauses in the will it is clear that the testator intended his entire estate should be closed at the expiration of ten years from his death. and the property then be conveyed to the beneficiaries, there is a clear repugnancy between such provisions, and both can not stand. It was held that such annuities ceased at the end of ten years. Armstrong v. Crapo, 72 Iowa 604, 34 N. W. 437. Where the residue of the estate was devised to M on the condition and subject to the charge of paying to the mother an income of $200 "during her life," to each of the daughters a certain income "so long as both they and their said mother shall all live," and it was further provided that "upon the death of either" of the daughters, a larger annuity should be paid to the survivor "during the life of their said mother," the duration of the annuities bequeathed to the daughters was held limited to the period of the life of the mother. - Towle V. Delano, 144 Mass. 95, 10 N. E. 769. 9a Yates v. Maddan, 3 Macn. & G. 532; Lett v. Randall, 2 De. G., F. & J. 388; Kerr v. Middlesex Hospital, 2 De G., M. & G. 576. ments may be enforced against the corpus of the fund when the annuity has been charged upon it.10 When the annuity is payable only out of the income of certain property with a gift over of such property, the corpus itself is not liable for delinquent payments;11 but if the entire income of the corpus is made subject to the payment of the annuity, and any limitation over is to be effective only after such payment, the corpus is liable upon the failure of payment. 12 Even though the corpus may not be liable, any arrearage must be paid out of subsequent accumulations of the income unless the will expresses a plain intent to the contrary.13 § 666. Interest on Delinquent Payments of an Annuity. Whether or not interest should be allowed on delinquent payments of an annuity, the authorities are in conflict, the trend of English decisions being unfavorable,11 American decisions favorable,15 to such allowance. A gift of the income from a certain fund is not an annuity, and interest thereon would not begin to run until one year after the death of the testator.16 10 Picard v. Mitchell, 14 Beav. 103; Byam v. Sutton, 19 Beav. 556; In re Tucker, (1893) 2 Ch. 323; Merritt v. Merritt, 43 N. J. Eq. 11, 10 Atl. 835. 11 Baker v. Baker, 6 H. L. Cas. 616; Miller v. Huddlestone, 17 Sim. 71; In re Mason, 8 Ch. Div. 411. 12 Playfair v. Cooper, 17 Beav. 187; Phillips v. Gutteridge, 4 De G. & J. 531 13 Reed's Estate, 236 Pa. St. 572, Ann. Cas. 1914A, 208, 85 Atl. 15. 14 Booth v. Coulton, 30 L. J. Ch. 378; In re Hiscoe, 71 L. J. Ch. 347; Torre v. Browne, 5 H. L. Cas. 555. 15 Bonham v. Bonham, 38 N. J. Eq. 419; Cooke v. Meeker, 36 N. Y. 15; Brotzman's Estate, 133 Pa. St. 478, 19 Atl. 564; Stephenson v. Axson, Bailey Eq. (S. C.) 274. Compare: Irby v. McCrae, 4 Desaus. (S. C.) 422. Where the annuity was only to continue five years under the terms of the will, and the annual payments had not been made, the annuitant was entitled to interest on each annual payment from the time it became due and payable.Willcox v. Willcox, 106 Va. 626, 56 S. E. 588. 16 Estate of Brown, 143 Cal. 450, § 667. Apportionment Upon Death of Annuitant: When Al lowed. The common law rule was that if an annuitant died before any payment became due, the annuity was not apportionable and the executor or administrator of the deceased annuitant was not entitled to receive any of the payment." In England this rule has been abrogated by the statute of 4 Wm. IV, ch. 22, which enacts in effect that all rents, annuities, and other payments due at a fixed period, shall be apportioned so that on the death of the person interested therein his executor shall be entitled to his proportion of such payments. Where no such statute exists in these United States, the common law rule prevails except as modified by certain exceptions, as, for example, where the annuity is given in lieu of dower,' for the separate maintenance of a married woman,19 or for the support of the children of the testator.20 77 Pac. 160; Bartlett v. Slater, 53 Conn. 102, 55 Am. Rep. 73, 22 Atl. 678; Booth v. Ammerman, 4 Bradf. (N. Y.) 129. 17 Farnam v. Farnam, 83 Conn. 369, 77 Atl. 70; Wiggin v. Swett. 6 Metc. (Mass.) 194, 39 Am. Dec. 716; Henry v. Henderson, 81 Miss. 743, 63 L. R. A. 616, 33 So. 960; Moore v. Downey, 83 N. J. Eq. 428, 91 Atl. 116; Stewart Swaim, 13 Phila. (Pa.) 185. V. 18 Mower v. Sanford, 76 Conn. 504, 100 Am. St. Rep. 1008, 63 L. R. A. 625, 57 Atl. 119; Blight v. Blight, 51 Pa. St. 420; Rhode Island Hospital Trust Co. v. Harris, 20 R. I. 160, 162, 37 Atl. 701. 19 In re Lackawanna Iron & Coal Co.'s Petition, 37 N. J. Eq. 18 or 26; Blight v. Blight, 51 Pa. St. 420. The exceptions, where the annuity was given by a parent to an infant child, or by a husband to his wife living separate and apart from him, were founded on reasons of necessity, and the presumption is that such annuities are intended for maintenance, and are given in view of the obligation of the parent to support his infant children, and of a husband to maintain his wife. Henry v. Henderson, 81 Miss. 743, 63 L. R. A. 616, 33 So. 960; Kearney v. Cruikshank, 117 N. Y, 95, 22 N. E. 580. 20 Howel v. Hanforth, 2 W. BI 1016; Dexter v. Phillips, 121 Mass § 668. Residuary Devises and Legacies Defined. To the three general classes of legacies, general, specific, and demonstrative, there is often added a fourth, namely, residuary. A residuary devise or bequest is one which embraces all the testator's real or personal property not otherwise disposed of by the will of the testator; it covers the residue of the estate, and not a fixed amount nor a particular article.21 A provision of the will that certain specified legacies are to be paid out of the residue of the estate after certain other legacies have been satisfied, does not make such legacies residuary.22 It must be of the residue only; a devise of the whole of an estate can not be construed as a residuary devise, but it might well be that the residuary clause embraces nearly the whole of the estate and virtually might amount to the same thing.23 The residue must not be limited, thus a devise of "the residue of my lands in Sampson County," is not residuary, but specific.24 § 669. The Same Subject: No Particular Form of Words Necessary. A residuary devise or bequest requires no particular form of words, any expression is sufficient if from it the testator's intention may be gathered that a desig 178, 180, 23 Am. Rep. 261; Chase V. Darby, 110 Mich. 314, 64 Am. St. 21 Kerr v. Dougherty, 79 N. Y. 327; Patterson v. Devlin, McMullan's Eq. (S. C.) 459. As to "devise," strictly speaking, having reference to realty, and "legacy" to personalty, see § 31. 22 In re Williams' Estate, 112 Cal. 521, 53 Am. St. Rep. 224, 44 23 Jewett v. Jewett, 21 Ohio Cir. Ct. Rep. 278, 12 Ohio C. D. 131. A bequest by the testator of all surplus money possessed by him at his death, does not make the beneficiary a residuary legatee.Paup v. Sylvester, 22 Iowa 371. 24 Morisey v. Brown, 144 N. C. 154, 56 S. E. 704. |