95 N.Y.S. 945 | N.Y. Sup. Ct. | 1905
The trustee brings suit for construction of a will. Testator left him surviving a widow and three infant sons, the children by his first wife. The estate consists entirely of personal property. It is clear and conceded by all parties that the trust for the benefit of the widow giving her an annuity of $4,000 a year, after a period allowed for the settlement of the estate, is a valid provision and separable from the other provisions of the will. She is to receive the $4,000' a year either as income from the earnings of the corpus of the testamentary estate alone, in which case the legacy is to take the place of a marriage settlement, an endowment of £4,000', or if she so elect she may take the marriage settlement, and the difference in the revenue from such marriage settlement and $4,000 is to be made up from the earnings of the estate. It does not appear that any securities or funds were set aside under the marriage settlement. No election is possible. Under these circumstances, the £4,000' being a part of the estate,
Reading the will as a whole it is obviously the intention of the testator to provide for his wife and three sons during their lives, and, further, to keep the property in the family. In the fifth paragraph he says: “My brother William C. Egleston having signified his intention of benefiting my sons in his will, I have thought it advisable to place all property in. trust for my sons, so that it may pass on to my grandchildren. My most earnest desire is to perpetuate the name, which it is trusted may be for 1 a good name,’ in all generations. * * * In several instances the property so carefully arranged by my father and mother has been left out of the line. No doubt had my father known it every portion would have been only for life, and no portion given to them.” The provision contingent upon the death of wife and sons was to certain relatives, “ to be used by them for life and still deeded on to their children.” After providing for the payment of income to the widow and sons the testator makes no disposition of the principal. This is not so extraordinary as would at first appear, for under the construction which
Judgment accordingly.
See post, page 693.