Bergen v. Valentine , 63 How. Pr. 221 ( 1882 )

Van Vorst, J.

By his will, the testator, Brewster Valentine, directed his executors to invest $100,000 in bonds, stocks or public securities issued by the United States, or by certain cities or counties, particularly limited by him, and to keep the same so invested, during the life of his wife, Catharine A. Valentine,' to whom the interest or income thereof was to be paid semi-annually during her life.

Upon the death of his widow, the testator provided that the sum directed to he invested should be paid over, the one-half thereof to the testator’s son, Ludlow W. Valentine, and the other half to the testator’s grandson, William B. Valentine.

The executors invested the sum in United States four and one-half per cent registered government bonds, due in 1891, at an average premium of three and eleven-sixty-fourth per cent, so that the par value of the bonds purchased amounts to the sum of $96,700, the balance, $3,000 and upwards, having been applied to the payment of the premium which the bonds bore.

The substantial question presented by the complaint in this action for determination is, upon whom the ultimate loss for premiums paid shall fall, whether on the life tenant or the remaindermen.

The idea of a loss in the end is, however, purely speculative, and rests upon the assumption that the face only of the bonds will be realized. But the bonds at the present time have a premium quite beyond that paid, and should the trust close by the death of the tenant for life some time before the maturity of the bonds, it is not clear but what a profit may yet be realized, instead of a loss suffered, by the remainder-men. For any accretion in that way gained, would go with the principal to those to whom the fund was payable.

But in the event that the funds are held until their maturity, it is not likely that anything more than the principal sum of $96,700 will be received for distribution. In cases of this character, it is equitable that the loss, if any, in this manner sustained, should be borne equally, as nearly as may be, by the life tenant and the remaindermen. „

The testator undoubtedly intended that his widow should realize the full amount of income which should accrue on such amount of United States, or other specified securities, as $100,000 should purchase, at the rate existing when the investment was directed to be made.

And in that view, the amount to be distributed at the death of his wife, would be the amount received as the principal of the bonds more or less.

It is quite clear that the widow, so long as the present investment shall continue, will not realize the interest on $100,000, but that is a loss growing out of the investment which was directed to be made. And in like manner, if nothing more than the face of the bond is realized upon the death of the widow, the loss of principal must fall upon the remaindermen.

I can see no equitable ground for imposing upon the widow any loss in addition to what she must sustain during her life growing out of the fact that the corpus of the fund has been, in the way above mentioned, diminished.

She is entitled to the whole income for life, without depletion, whatever it may prove.

Hor can the remaindermen now equitably demand-that any encroachment shall be made upon the income to make up what has been paid out of the principal for premiums.

What has been done and what is to be borne by the parties, as above indicated, of themselves adjust the loss, if any, in proper proportions. Turner agt. Newport (2 Phil., 14); Cox agt. Cox (L. R., 8 Eq., 343) are cases which announce principles in harmony with what is above expressed. Matter of Pollock (3 Red. Sur. R., 100) is in the same direction.

I am referred to the case of Farwell agt. Tweddle (10 Abb. N. C., 94) as advancing a contrary view.

The condition of that case is quite different from the one under consideration. The trust in that ease was substantially closed, at least in so far as the trustee was concerned, and the principal of the bonds had been received.

There the exact amount of the loss of principal, was ascertained, but as far as the facts were concerned it" does not represent the condition of this trust.

Here the executors were bound by the terms of the will to invest the fund in a certain security, which they have done, and the result which follows must be assumed to have been within the contemplation of the creator of the trust, and that it was not his intention that the widow and remaindermen should receive, the one less and the other more than he had given, and that the loss, if any, should be borne by the parties in the way above indicated.

The case put by the learned judge, in Farwell agt. Tweddle (page 95), does not embrace the incidents existing here which I regard as quite material.

The conclusion reached is that Catharine A. Valentine is entitled to the entire interest received on such bonds, and that the plaintiffs, the trustees, would not be justified in deducting anything therefrom to make up what has been paid by way of premium in the purchase of the bonds, and judgment is directed accordingly.

Findings of fact, conclusions of law and judgment in pursuance of the above must be prepared by the plaintiffs’ attorneys and a copy served on the attorneys for the other parties with a notice of settlement of two days.