135 N.Y.S. 140 | N.Y. Sup. Ct. | 1911
Manning F. Lawson died seised of certain real estate, which, by his will, he left in trust in the following terms:
“Third. I give, devise and bequeath ail my real estate wheresoever situate, to my friends Scott Foster and William Milne, in trust nevertheless, during the life of my said wife Sarah A. Lawson, to receive the rents, issues and profits thereof and to apply the same in equal shares or portions to the use of my said wife Sarah A. Lawson, my son A'. Franklin Lawson and my daughter Irene N. Lawson during the life of my said wife, share and share alike. In the event of the death of my said son or daughter, during the life of my said wife, leaving issue him or her surviving, such issue shall take the share or portion of said rents, issues and profits, during the life of my wife, that the parent would have taken if living.
“Fourth. Upon my death of my said wife, I give, devise and bequeath all my aforesaid real estate to my son A. Franklin Lawson, my daughter Irene N. Lawson and my nephew Alfred P. Lawson of Gurnee, Illinois, in equal shares or portions. The issue of either my said son, daughter or nephew to take the share or portion of the parent.”
The wife, son, daughter, and nephew so named in the will survived the testator; but in the year 1908 the daughter, Irene, died leaving no issue, and a question thus became presented as to the disposal of this daughter’s share of the income, during the period of the trust— the widow’s lifetime. Irene Lawson left a will, duly admitted to probate, whereby, after providing for a small legacy, she devised all her property, real and personal, to the defendant Minnie C. Van Tine.
To the extent that my determination, in favor of the defendant Van Tine, involves- the validity of the will of Irene Lawson, as an instrument effective to pass title to real estate, the matter is within the issues, and the only persons answering the description of her heirs at law are parties to the record.
My construction of the will of Manning F. Lawson, however, is to be limited to the question of income. §o far, I have been called upon, as between the parties before me, to consider the nature of the remainder devised to Irene, and the record is complete for the purpose of an adjudication as to the distribution of income.
Except as to the parties to the action, and as involved in the question of this present distribution, pending the termination of the trust, no judgment is to be rendered determining the character of Irene Lawson’s interest in remainder, since parties necessary to that determination have been omitted.
Alfred P. Lawson, one of the persons named in the “fourth” clause of this will, has three children contingently interested in remainder, and whose interest would be enhanced by an adjudication that the remainders vested only in those persons named who survived the life beneficiary, or in their issue. These omitted parties, however, are not interested, in the income, and my construction of the will, as so limited, does not affect them.
I conclude that 'the defendant Minnie C. Van Tine is entitled to the income accruing to the share of Irene Lawson under the third clause of the will .presented for construction.
I have indicated upon the proposed findings submitted my disposal of the requests to find. Form of judgment may be submitted on notice of settlement. Decision signed.