Bulkley v. Depeyster

26 Wend. 21 | N.Y. Sup. Ct. | 1841

After advisement, the following opinion was delivered :

By the Chief Justice.

The appeal in this case is limited to three questions, passed upon, among many others, by the Chancellor, in giving a construction to the will of Mr. Clendining, on behalf of the administrator : Thefirst in respect to the clause in which the testator directs that all his real and personal estate, (after payment of his debts and funeral charges,) shall be converted into money for the purpose of investment and distribution. This was held to be valid as a power, under the Revised Statutes. The second, in respect to the clause which limits the income of the estate in certain portions to the children for life, and gives the principal to the grand-children on the decease of the parents. This was held to be valid, as not suspending the power of alienation beyond the period of two lives allowed by law ; and the third, respects that part of the decree in which the court below appointed Mr. Depeyster a trustee to carry into execution the several valid trusts in the will, the three trustees named by the testator having declined to act.

The points presented on the argument on the part of the appellants, are mainly confined to a consideration of the second question: it being insisted by the counsel, that the limitation, upon a true construction of the will, suspends the power of alienation beyond two lives, and is therefore void, leaving the real estate to descend to the heirs according to the statute of descents, and the personalty to be distributed to the next of kin.

The will, as a whole, I think, well drawn, and an extremely plain one ; and though there may be a little obscurity in respect to the clause in question, it is not so obscure as to raise a reasonable doubt as to the intent of the testator. He had six children—four daughters and two sons. Mrs. Bulkley, the wife of the appellant, was passed by with a nominal legacy, herself and family having already received advances exceeding the portions of the other children. The estate is then divided, substantially, into seven parts. Sarah, the wife of Mr. Hogan, and the two sons, John and James, each to have the income of one part, the two other daughters the income of four parts, (making in all, seven,) for their natural lives. The testator then provides, that in case of the death of any of his children named, without issue, the yearly sum bequeathed to the child so dying shall be equally divided among the survivors ; and if the child dying leave lawful issue, then the yearly sum bequeathed to the child so dying to be paid to his or her child or children during the life of his wife: it being his intention, he adds, that his children named should have and enjoy during their lives, the whole income of the estate, (subject to the annuity granted to his wife,) but no part of the principal; and that the principal should be equally divided among their lawful issue, the children of each taking the share or portion the parent would have been entitled to, if the principal had been bequeathed to him or her. Then comes the clause bearing more directly upon the question before us : “I do further order and direct, that after my beloved wife shall have departed this life, if any of my said children, (naming them,) shall then be dead, leaving lawful issue, then that the share or proportion of the principal of my estate which the child so dying would have been entitled to, if the principal had been bequeathed to my said children, be paid to his or her child or children ; and that upon the death of any of my said children after the death of my said wife, a like portion of the principal of my estate be paid to his or her children; and that a final distribution and settlement of my estate among my grand-children, according to this my will and intention as herein before expressed, be made immediately after the death of the survivor of my said children.”

The only obscurity in respect to any part of the will arises out of this latter clause, which looks like an intent to postpone the distribution of the principal of the income of each child among the grand-children, till the death of the last survivor, which would suspend the absolute ownership for the lives of the widow and five children. But whatever may have been the meaning intended, it is quite too vague and uncertain to supersede the previous clear and positive declaration of the testator in the matter. He has, in direct terms, declared, that if any of his children shall be dead, at the decease of his wife, leaving issue, that then the share or portion which would have belonged to such child if the principal had been bequeathed to him or her, shall be paid to the grand-children. He had previously provided for their receiving the income during the life of his wife; and what makes the meaning still more clear, he goes on to say, that upon the death of any of his children after the decease of his wife, a like portion of the principal shall be paid to his or her children. The testator has thus carefully provided for paying the income of the deceased parent to his or her children, where the death happens previous to the death of his wife, but confines it in terms to a period during her life. No provision is made for a like payment after her death, which would have been a most natural one, if contemplated by the will. Why confine the payment of the income to the grandchildren in terms during the life of the widow, if intended to postpone the distribution of the principal till the death of the last surviving child 1 Or why not have provided for payment of the income down to the period of the final distribution claimed 1 The true reason is, that provision was made by the testator for payment of the principal to the grand-children of deceased parents immediately on the death of his wife, and so successively as the parents after-wards died, down to the death of the last survivor, when the distribution among the grand-children will have become complete—which is all, probably, that was meant by the general phraseology of the last three lines of the clause referred to.

The consequence of the above construction is, that the vesting and enjoyment in possession of each portion of the estate devised, is not postponed beyond two lives in being at the time the will took effect: namely, the ■ lives of the wife and of the child to whom the portion is given ; at the farthest, on the death of these two, the grand-children take an absolute interest in the share.

I concur, therefore, in affirming the decree below.

On the question being put, Shall this decree be reversed 1 the members of the court divided as follows :

In the affirmative ; .Senators Dixon, Lee and Peck—3. In the negative : The President of the Senate, the Chief Justice, and Senators Denniston, Furman, 'Hawkins, Hopkins, Hunter, H. A. Livingston, Nicholas, Platt, Rhoades, Scott, Strong, Verplanck and Works —15.

Whereupon the decree was Affirmed.