49 N.Y.S. 368 | N.Y. App. Div. | 1898
The plaintiff in this action was the.husband of Caroline L. Brown, a daughter of James W. Lawrence. Mrs. Brown died intestate on' the 8th of February, 1897, and without children. Sarah C. Lawrence, a sister, and James B. Lawrence,.a brother, survived her. James W. Lawrence died on the 21st of April, 1891, leaving a widow and three children, above named. His widow died on the 29th of August, 1891. He left a last will and testament, by the terms of which he gave to his executors all the remainder of his estate in trust to sell and dispose of the same, and invest the proceeds and keep the same invested ; to pay over the income to his wife during her life, “ with leave to my executors to pay her from time to time any part or the whole of the said principal, if in their judgment the same shall be necessary for her comfortable maintenance and. support.” The executors were then directed, upon the decease of the. ■ testator’s wife, to divide so much of -the estate as might then remain into as many equal portions as there were children surviving the testator, and to pay over the income of one of such portions to his daughter Caroline (Mrs. Brown) during her life, “and upon her
We cannot agree with the court below in that conclusion. It ■cannot be sustained on the theory that one entitled to the income of* & fund must be excluded in ascertaining the next of kin entitled to the ultimate ownership of a share in or of the whole of that fund, ’ where there is no disposition over of the fund itself after the expiration of the life interest. There are many cases in which, for the want, or on failure of gifts over, the reversionary interest which would pass to the next of kin under the statute passes to the representatives of the recipient of the income or the person entitled for life.' Where there is no disposition o.ver, the statute fixes the ■ownership. We had occasion to consider that subject fully in the case of Simonson v. Waller (9 App. Div. 503). That was a decision relating to a foreign will, but the same reasoning and the same rule of law applies here. Where no intention can be gathered to the contrary from the will, even where the life tenant is the only person ¡answering the description of next of kin, the representative of that 3ife tenant may take the whole fund on the expiration of the particular estate and so take in the right of the person .who was that life tenant, as next of kin. It is said, however, that it conclusively .•appears by the terms of the will that it was the intention of the testator that his daughter. Caroline should not, under any circumiStances, take any other interest in his estate than that for life, given .by the 4th clause of the will. It is undoubtedly the law that, in ■.some cases, in order to ascertain the intent of the testator, void provisions of a will may be considered, and to that extent be given effect to in connection with the valid ones. Such' was Van Kleeck v. Dutch Church of New York (20 Wend. 457) and Van Cortlandt v.
But it is further claimed •— and the decision of the learned judge below was based principally upon that position — that the interposition of a trust title and interest carried with it the whole ownership to the trustees, and that that title was not divested until the death of the cestui que trust. We cannot assent to that proposition. The trustees did not take the whole ownership of the fund. If, for the-.purposes of the trust, and in order to effectuate the valid purposes of that trust, a less estate than the whole were required to vest in the trustees, the mere fact of the existence of the trust would not have prevented the expectant interest in the reversion of a part of the fund inhering in Caroline Brown as one of the next of kin. It has come to be the . well-settled rule in this State that trusts of personal property are to be assimilated as near as may be to the provisions of law respecting trusts under the Statute of Uses. In Cook v. Lowry (95 N. Y. 111) it is said .that the decision in that case was supported “by the rule of construction, declared in several cases that, in interpreting the provisions of the Revised Statutes, the rules governing estates or interests in land should, as far as practicable, be applied to like estates or interests in personal property. "Where there is no reason for a distinction in the nature of the property there is certainly great propriety in assimilating the rules governing dispositions of real and personal estate. Acting upon this principle, the statutory rule rendering the interest of a beneficiary in a trust for the receipt of the rents and profits of land inalienable, has by analogy been applied to trusts of personal property. (Graff v. Bonnett, 31 N. Y. 9.) So,
We think, therefore, that the decision of the court below was erroneous; that the representative of Caroline Brown was entitled to the one-ninth of the personalty, and that the judgment appealed from should be reversed and that judgment should be directed in favor of the plaintiff, as prayed for in the complaint — the amount, however, being limited to one-ninth and not one-tliird of such personalty, and such amount to be ascertained by an accounting, with costs to the plaintiff as against the defendants James B. Lawrence and Sarah C. Lawrence, with costs to the executors payable out of the estate; the taxable costs of the guardian ad litem to be paid out of the portion of the estate now awarded to the plaintiff.
Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.
Judgment reversed and judgment ordered for plaintiff, as directed in opinion, with costs to the plaintiff as against the defendants James B. Lawrence and Sarah 0. Lawrence, with costs to the executors payable out of the estate, and with taxable costs of the guardian ad, litem to be paid out of the portion of the estate now awarded to the plaintiff.