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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.
§ 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." 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. Cooke v. Meeker, 36 N. Y. 15; 433, 160 N. Y. Supp. 669.
Curran v. Green, 18 R. I. 329, 27
Atl. 596. 3 Hawksworth V. Hawksworth,
6 Ager v. Pool, 3 Dyer 371 b, 27 Beay 1; Gibson v. Bott, 7 Ves.
73 Eng. Repr. 832; Hayes v. WhitJun. 96.
all, 13 N. J. Eq. 241. Simmons v. Hubbard, 50 Conn.
7 Hayes v. Whitall, 13 N. J. Eq. 574; Wiggin v. Swett, 6 Metc. (47
241. Mass.) 194, 39 Am. Dec. 716; Sar- 8 Henry v. Henderson, 81, Miss. gent v. Sargent, 103 Mass. 297; 743, 63 L. R. A. 616, 33 So. 960. II Com. on Wills-9
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 An.
nuity 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. Where the residue of the estate 207; Houghteling v. Stockbridge, was devised to M on the condi136 Mich. 544, 99 N. W. 759; Cleve- tion and subject to the charge of land v. Cleveland, 89 Tex. 445, paying to the mother an income 35 S. W. 145.
of $200 “during her life," to each Where in the first part of the of the daughters a certain income will certain annuities are given "so long as both they and their to named persons for life, but are said mother shall all live," and it not made a charge on the real was further provided that "upon estate, and from subsequent the death of either" of the daughclauses in the will it is clear that ters, a larger annuity should be the testator intended his entire es- paid to the survivor “during the tate should be closed at the expira- life of their said mother," the tion of ten years from his death, duration of the annuities beand the property then be con- queathed to the daughters was veyed to the beneficiaries, there held limited to the period of the is a clear repugnancy between life of the mother. - Towle such provisions, and both can not Delano, 144 Mass. 95, 10 N. E. 769. stand. It was held that such an- 9a Yates .v. Maddan, 3 Macn, & nuities ceased at the end of ten G. 532; Lett v. Randall, 2 De. G., years. — Armstrong v. Crapo, 72 F. & J. 388; Kerr V. Middlesex lowa 604, 34 N. W. 437.
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 8 666. 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, 14 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. 15 Bonham v. Bonham, 38 N. J. 103; Byam V. Sutton, 19 Beav. Eq. 419; Cooke v. Meeker, 36 N. Y. 556; In re Tucker, (1893) 2 Ch. 15; Brotzman's Estate, 133 Pa. 323; Merritt v. Merritt, 43 N. J. St. 478, 19 Atl. 564; Stephenson v. Eq. 11, 10 Atl. 835.
Axson, Bailey Eq. (S. C.) 274. 11 Baker v. Baker, 6 H. L. Cas. Compare: Irby v. McCrae, 4 616; Miller v. Huddlestone, 17 Desaus. (S. C.) 422. Sim. 71; In re Mason, 8 Ch. Div. Where the annuity was only to 411.
continue five years under the 12 Playfair v. Cooper, 17 Beav. terms of the will, and the annual 187; Phillips v. Gutteridge, 4 De G. payments had not been made, the & J. 531
annuitant was entitled to interest 13 Reed's Estate, 236 Pa. St. 572, on each annual payment from the Ann. Cas. 1914A, 208, 85 Atl. 15. time it became due and payable.-
14 Booth v. Coulton, 30 L. J. Ch. Willcox v. Willcox, 106 Va. 626, 378; In re Hiscoe, 71 L. J. Ch. 347; 56 S. E. 588. Torre v. Browne, 5 H. L. Cas. 555. 16 Estate of Brown, 143 Cal. 450,
8 667. Apportionment Upon Death of Annuitant: When Al.
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.17 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,18 or 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 26; Blight v. Blight, 51 Pa. St. Conn. 102, 55 Am. Rep. 73, 22 Atl. 420. 678; Booth v. Ammerman, 4 Bradf. The exceptions, where the an(N. Y.) 129.
nuity was given by a parent to 17 Farnam v. Farnam, 83 Conn. an infant child, or by a husband 369, 77 Atl. 70; Wiggin v. Swett. to his wife living separate and 6 Metc. (Mass.) 194, 39 Am. Dec. apart from him, were founded on 716; Henry v. Henderson, 81 Miss. reasons of necessity, and the pre743, 63 L. R. A. 616, 33 So. 960; sumption is that such annuities Moore v. Downey, 83 N. J. Eq. are intended for maintenance, and 428, 91 Atl. 116; Stewart are given in view of the obliga. Swaim, 13 Phila. (Pa.) 185.
tion of the parent to support his 18 Mower v. Sanford, 76 Conn. infant children, and of a husband 504, 100 Am. St. Rep. 1008, 63 to maintain his wife. - Henry v. L. R. A, 625, 57 Atl, 119; Blight v. Henderson, 81 Miss. 743, 63 Blight, 51 Pa. St. 420; Rhode L. R. A. 616, 33 So. 960; Kearney Island Hospital Trust Co. v. Har. v. Cruikshank, 117 N. Y, 95, 22 ris, 20 R. I, 160, 162, 37 Atl. 701. N. E. 580.
19 In re Lackawanna Iron & 20 Howel v. Hanforth, 2 W. BI Coal Co.'s Petition, 37 N. J. Eq. 1016; Dexter v. Phillips, 121 Mass
8 668. 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
8 669. The Same Subject: No Particular Form of Words Nec
essary 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 5. Darby, 110 Mich. 314, 64 Am. St. Rep. 347, 68 N. W. 159.
21 Kert 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,