Grace A. MOWER, Admrx., etc., of Sarah M. Sanford, Deceased, Appt.,

v.

Charles H. SANFORD, Admr., etc., of Glover Sanford, Deceased.

(........Conn.........)

1. An annuity to take effect from and after the death of the donor is payable, not in advance, but at the termination of the yearly periods commencing with his death.

2. An annuity is not apportionable, even when given to a widow in lieu of dower; so that her death pending a yearly period will terminate all claim to any portion of the sum which would have become payable at the termination of that period.

(March 3, 1904.)

PPEAL by plaintiff

Brown v. Slater, 16 Conn. 195, 41 Am. Dec. 136; Calkins v. Lockwood, 16 Conn. 286, 41 Am. Dec. 143.

A contract should be enforced as the parties intended it; otherwise we would substitute for the contract which the parties did make, one that they did not make.

Cotting v. New York & N. E. R. Co. 54 Conn. 171, 5 Atl. 851.

(1) To

The general intent of the parties in this case is clearly shown by the objects of the contract as expressly stated in the contract itself. These objects are twofold: secure to the plaintiff's intestate her support during life, or so long as she should remain the widow of the defendant's intestate; (2) to protect the estate of the defendant's intestate from the widow's claim of dower. A fair interpretation of in

ty in favor of defendant in an action brought to enforce payment of an annuity. Affirmed.

The facts are stated in the opinion. Mr. Charles K. Bush, for appellant: In the construction of contracts courts are to look to the intent of the parties, and give effect to that intent, if it can be done consistently with the principles of law.

apart from her. Kearney v. Cruikshank, 117 N. Y. 95, 22 N. E. 580, Reversing 46 Hun, 219. Where the King by indenture, in pursuance of an act of Parliament, granted to trustees for his Queen consort an annuity to commence from his death and to continue during her life, such annuity was not apportionable; and a mandamus will not lie at the suit of the trus tee to compel the lord's commissioners of the treasury to pay to the trustee a portion of the annuity equal to the proportionate time which had elapsed from the time of the last payment to the death of the Queen annuitant. The court said that Howell v. Hanforth, 2 W. Bl. 1016, depended upon the equitable principle that the maintenance of infants is always apportionable. The court further said that the two equitable exceptions, as to infants and married women living separate from their husbands, instead of establishing a rule that annuities granted for maintenance are legally apportionable, confirms the contrary rule. Queen v. Lords Commissioners of the Treasury, 16 Q. B. 357.

See also Blight v. Blight, 51 Pa. 425; Chase v. Darby, 110 Mich. 314, 64 Am. St. Rep. 347, 68 N. W. 159; Re Lackawanna Iron & Coal Co. 37 N. J. Eq. 26; Stewart v. Swaim, 13 Phila. 185,-infra, II. b, 1; Earp's Appeal, 28 Pa. 368, infra, III.

b. Consideration passing from annuitant. 1. In lieu of dower.

In addition to those already mentioned, another exception has been forced upon this

guage of the instrument is that the widow was entitled to the first payment of $1,000 immediately after the death of her husband, and to the subsequent payments at the beginning of each year thereafter.

Annuities given by will commence at the death of the testator, and, though the first payment be postponed a year, it draws interest from the time of his death.

arbitrary rule, viz.: That, where an annuity is created and accepted in lieu or bar of dower, the annuity will be apportioned; the reason being that, as the thing for the surrender of which the annuity is given and received would obtain and remain during the life of the person entitled to it, so should the annuity which takes the place of it.

Where a wife accepts a devise or bequest of an annuity in lieu of her dower in the estate disposed of by the will which contains such bequest, and dies ten months after the last payment, her executor may recover the apportioned part of the annual sum as due at her death. The reason for this was said by the court to be that "dower lasts during the life of a widow, and it would be strange that what is accepted instead of it should not last as long. It would be strange that what is given to maintain a child, though payable at specified periods, or to support a wife separated from her husband, should each run on to the time of the death, and a like provision for a widow should determine before her death. Debility, sickness, increased expense, and additional wants often precede death, and, on the ground of intention, no testator ever designed that the last hours of his widow, and her funeral, should depend on charity." The court further said that as she might always reject the devise, and claim her dower, and her title to the bequest depends upon her giving up her dower, which would last until her death; she might be considered purchaser of the annuity until the same period. when her dower would cease. Gheen v. Osborn, 17 Serg. & R. 171.

If a contract admits of more than one construction, one of which will render it inefficacious or nullify it, that construction should be adopted which will carry it into effect.

1 Am. & Eng. Enc. Law, pp. 595, 596, 3 Perry, Tr. 5th ed. § 556; Re Lackawanna Iron & Coal Co. 37 N. J. Eq. 26; Blight v. Blight, 51 Pa. 420; Re Cushing, 58 Vt. 393; Rhode Island Hospital Trust Co. v. Harris,

Matney v. Linn, 59 Kan. 615, 54 Pac. 668; Kennedy v. Kennedy, 150 Ind. 636, 50 N. E. 756; Ditson v. Ditson, 85 Iowa, 283, 52 N. W. 203; 19 Am. & Eng. Enc. Law, 2d ed. p. 1240.

The law extends the exceptions to the general rule respecting annuities to cases in

While it is the general rule that annuities whether created inter vivos or by will, are not apportionable in respect of time, an exception has been allowed in case of an annuity given in lieu of dower, the reason for the exception. being that, as dower lasts during the life of the widow, what is given in its place should last the same length of time. The case was the very common one of a bequest of an annuity to a widow, and the question arose between her executor and the trustee of the original will, whether the former should receive an apportionment of the annuity for the period between the day of payment thereof and the date of her decease. Rhode Island Hospital Trust Co. v. Harris, 20 R. I. 160, 37 Atl. 701. the same effect, Re Cushing, 58 Vt. 393, 5 Atl. 186.

Το

In Re Lackawanna Iron & Coal Co. 37 N. J. Eq. 26, the wife had joined in a conveyance of real property to bar her dower, and part of the consideration of her release was the agreement to pay the annuity to her for life, in case she should outlive her husband, and it was held that the annuity was a provision for support, and it was not to be supposed that it was intended that the annuitant should be liable to lose the benefit of the provision for the year in case she should not live until the end of that period, and that the annuity in that case was apportionable, and, consequently, that her administrator was entitled to a proportionate part for the period in question.

While the authorities prove the general rule of law to be that apportionment is not made of rents, dividends, annuities, and other periodical payments becoming due at fixed intervals, but only of sums accruing de die in diem, the same authorities establish an exception to the general rule in favor of dower, and sometimes for the maintenance of a wife or child. Blight v. Blight, 51 Pa. 425. In this case the annuity was in lieu of dower, and the court held that it lasted as long as dower would have lasted, which is to the last day of life.

The last four cases are cited with disapproval in MOWER V. SANFORD.

Where a testator, after making other provisions for his wife, bequeathed to her a sum payable annually on the 1st of March, and stated that the provisions of his will in favor of his wife were in lieu of dower, and he died in August, the wife was entitled to a proportionate amount accruing from the time of his

The ordinary and natural meaning of a direction by one person to pay to another a specified sum annually, or "each year," is that the specified sum is to be paid in an annual or yearly payment.

death to the 1st of March then next following. but was not entitled to be paid the sum until the latter date. M'Lemore v. Blocker, Harp. Eq. 272.

In Sweigart v. Frey, 8 Serg. & R. 299, it appeared that a testator had devised his real estate to his wife during her widowhood, and directed that after her death it should be sold and the proceeds divided among his children; and it was afterwards agreed between the widow and the heirs and legal representatives that the real estate should be sold, which was consummated, and, as a consideration for her conveyance, the purchaser executed a bond, a part of the condition of which was, he should pay the interest on a certain sum to the widow during her natural life on the 1st day of April yearly. In an action by the administrator of the widow against the obligor in the bond the court held that, the consideration of the bond being the life interest of the wife in the tract of land purchased by the defendant, the clear intent was that the interest should be paid to the widow during her life and cease immediately upon her death, and the only effect of not apportioning the amount for the time between the last payment by the defendant and the day of her death would be that it would be pocketed by the defendant, as the heirs could have no pretense to it, and that in equity, in a contract like this, the interest accrues from day to day.

In Parker v. Seeley, 56 N. J. Eq. 110, 38 Atl. 280, it appeared that the widow, who was entitled to an annuity, died during the first year, and her representative claimed that he was entitled to the whole yearly sum; but the court held that he was only entitled to that part of the annuity for the year in which she died that had accrued at the time of her death.

A bond, the consideration of which is the release by a widow of her right of dower, which is payable on a certain day in each year, is an annuity, and as such is not subject to apportionment. Tracy v. Strong, 2 Conn. 659. In this case it was admitted that there was an arrearage of annuity which had become due on the certain day previous to the death of the widow. The defendant had tendered the amount up to that day, and the claim of the plaintiff was that he was entitled to recover, as the personal representative of the widow, a proportion of the amount of that sum to the date of her death. The court held that this was not

An annuity, from the meaning of the word, is a sum payable annually, unless the language of the instrument creating it may properly be construed as providing a different time of payment. By the agreement before us, the annuitant is expressly given, and expressly contracts to receive, the sum of $1,000 "annually," so long as she shall remain the widow of the grantor. The word "annually," as thus used, not only denotes the amount to be paid, but the time of payment. Kearney v. Cruikshank, 117 N. Y. 99, 22 N. E. 580. It means, not only for an amount proportionate to the time between the last payment and the death of the life tenant, the grantor. It was admitted, during the argument by counsel on each side, that the case did not fall within the apportionment act. Alluding to this admission, the master of the rolls said that the reason for it was on the ground stated in 9 Jarman's Precedents, p. 578, note, and Shelford on the Real Property Statutes, 5th ed. p. 484, where it was laid down: "It has been doubted whether an annuity payable on certain days, as half yearly or quarterly, determinable on the death of the grantor, would come within this act, which enables the annuitant to recover the apportionment, when the entire portions of which such apportioned parts form parts, shall become due and payable; because, if the annuity ceased by the death of the grantor, on any other day than that appointed for payment, the entire portion would never become payable. It has therefore been very properly recommended that the usual apportionment clause in the grant of such an annuity should be retained." The master of the rolls further said that he did not feel called upon to decide that point, as it had been admitted by counsel. Leathley v. Trench, 8 Ir. Ch. Rep. 401.

In Paton v. Sheppard, 10 Sim. 186, it was held that, where a life tenant of stock died on the day when the half year's dividends became due, the dividends belonged to his administrator, as they formed a part of his personal estate. The court said that the case would be different in the case of rent reserved on a lease, for there the rent would not be due until the full day on which it became due had expired, whereas the dividends on the stock were due as soon as the day commenced. To the same effect, Robinson v. Robinson, 2 Ir. C. L. Rep. 370.

IV. Interest.

$1,000 for each year, but that that sum is to be paid to her each year. An agreement to pay a fixed sum annually, or each year, in the absence of language modifying the ordinary meaning of these terms, cannot fairly be construed as a promise to pay such sum annually in advance, or at the commencement of each year. A contract for the payment of money in fixed instalments, containing no other provision for the time of payment of such instalments than that they are to be paid annually, is lawfully performed by the payment of a single instalment at the end of each year. The words of the agreement. "the same to take effect from and after the death of her said husband," do not describe the time of the payment, but the event which brings the annuity into existence, the time from which it begins to run. Simmons v. Hubbard, 50 Conn. 574–576. "If an annuity is given by will, it will commence immediately after the testator's death, and the first payment shall be made at the expiration of a year from that event." 1 Swift's Digest, p. 455. tionary, where the annuity is for a widow's maintenance, and prompt payment is necessary to her comfortable support (Beeson v. Elliott, 1 Del. Ch. 368; Addams v. Hefferman, 9 Watts. 529); or in lieu of dower (Elliott v. Beeson, 1 Harr. [Del.] 106; Houston v. Jamison, 4 Harr. [Del.] 330; Seitzinger's Estate, 170 Pa. 531, 32 Atl. 1101).

But in Isenhart v. Brown, 2 Edw. Ch. 347, it was heid that where the payments due on an annuity had been allowed to fall in arrears no interest was payable on such arrears.

Where an annuity was to be paid in pork and corn, delivered at a particular place, the value of which was to be ascertained by test! mony, and in the absence of any satisfactory proof of a demand at the place where it was to be paid, or of an agreement to dispense with such demand, and convert the same into money, -no interest should have been allowed on the arrears thereof. Philips v. Williams, 5 Gratt. 259.

V. Conclusion.

In England, and in some of the states, statutes have been enacted abrogating the commonlaw rule. These statutes are very comprehensive, and include all cases where fixed and certain amounts are made payable at fixed and certain times or periods. In some of the states, however, the old rule still prevails, and while, as has been seen, there are some differences between the several jurisdictions as to when and what exceptions prevail, the decisions are unanimous that they do so in the instance of an annuity given for the maintenance of minor children, and of a wife living separate from her husband. And the weight of authority is in favor of the apportionment of an annuity created and accepted in lieu of dower. the trend of decision is in favor of extending the exception to any case where the annuity is made for the purpose of maintenance and

And

P. H. V.