123 N.Y.S. 513 | N.Y. App. Div. | 1910
This appeal presents the question of the validity of certain trust provisions contained in the will of Catharine Hunt Tilford, deceaéed. The provisions called in question involve the disposition of the residuary estate, consisting wholly of personalty, and amounting as it is said to over $800,000.
Wesley and Edward have since died. The grandchildren,. Fran It V. Tilford and Elizabeth T. Keferstein, received legacies of $5,000 each, but do not participate in the residuary estate for the reason stated by the testatrix in her will. The disputed clauses are the 13tli and, 14th, which read as follows: “ Thirteenth. I bequeath, ten thousand dollars to my Trustees hereinafter named or the survivor of them, in trust to invest, .re-invest and manage the sainé, collect the issues and profits thereof, and pay the net income thereof, quarterly,, to my daughter, Mary Trotter Chastain, during her life, and upon her death the principal sliall again become a part of my residuary estate, and shall be' divided equally between the devisees of said residuary estate in accordance with the terms - and conditions hereinafter provided.'
“ Fourteenth. I devise and bequeath all the rest, residue and remainder of my estate, real and personal, as follows : I devise and bequeath one equal fifth part thereof .to my Trustees hereinafter named, or the survivor of them, in trust to enter into possession thereof, to invest; refin vest and manage the same,-collect, the rents, issues and profits thereof and. pay the said rents, issues and profits quarterly to my son Richard Curd Tilford, during his life, and upon his death the principal shall again become a part of my residuary estate and shall be divided equally between the remaining- devisees of said residuary estate, subject to the same terms and conditions as; are herein provided for'the several one-fiftli portions thereof.
“ 1 devise and bequeath one equal fifth part thereof to my Trustees hereinafter naméd, or the survivor of them, in trust to- enter into possession thereof* to invest, re-in.vest and manage the same, collect "the rents* issues and profits thereof and pay the said rents, issues and profits quarterly to my. son Edward Alfred Tilford, during his' life,
“ I devis.e and bequeath one equal fifth part thereof to my Trustees hereinafter named, or the survivor of them, in trust to enter into possession thereof, invest and. re-invest and . manage the same, collect the rents, issues and profits thereof and pay the said rents, issues and profits quarterly to my daughter Mary Trotter Chastain during her life, and upon her death to pay the. rents, issues and profits quarterly to my great-grandson Hunt Tilford Dickinson, if he is living, until he is twenty-five years of age, and when he shall arrive at the age of twenty-five years, my said trustees shall convey and pay over to him, the said Hunt Tilford Dickinson, the said trust estate. If, however, he" shall die before he arrives at the age of twenty-five years, without lawful issue him surviving, the principal of said trust estate shall, on his death, and the death of my said daughter, become again a part of - my residuary estate and shall be divided equally among the devisees. of my residuary estate, subject to the same terms and conditions as herein provided for-the several one-fifth portions thereof.
“I devise and bequeath one equal fifth part thereof to my son Wesley H unt Tilford and his heirs. I devise and bequeath one equal fifth part thereof to my son Henry Morgan Tilford and his heirs.
“ The reason I have not devised any of my estate except as above to the children of my deceased son J. B. Tilford, is because of his wish that I should not do so, he stating that his children would inherit from him all that he desired they should have.”
The controlling purpose of the testatrix in the disposition, of her residuary estate is very evident. She desired that her daughter and each of her four sons should share equally in. the enjoyment of the estate during their respective lives. As to the daughter and the sons Edward A. and Richard C. she proposed to limit their enjoyment to the use of the income, the whole principal ultimately going. to the sons Wesley and Henry and their heirs and the. great grand-, son, Hunt Tilford Dickinson. . The criticism made.. upon this attempted disposition is that it violates or in certain contingencies
In case then of Richard’s death, after that of Edward, the terms of the will will be sufficiently, and indeed precisely, complied with if the principal fund originally set apart for Richard be divided between Mrs. Chastain, Wesley and Henry, or the respective heirs of the two latter, leaving the sub-share which came to Richard upon the death of Edward undisposed of. As to that sub-share, after the death of Richard, being one-twentieth of the residuary estate, the testatrix, wittingly or unwittingly, died intestate.
The same rule applies to the sub-shares which may come to Mrs. Chastain upon the death of either of her brothers , Richard or Edward. Each of the provisions for Richard, Edward and Mrs. Chastain reads alike. One-fifth of the estate is given to the trustees, to hold the same and pay the income to the named beneficiary. What is to be divided upon his or her death is “ the principal,” meaning obviously the principal of the share originally set apart.. The will certainly does not say in words that the sub-shares result
There is one possible contingency in which the will, as drawn, might produce an illegal suspension of the absolute ownership of a fraction of the residuary estate. It relates to the disposition of the
It follows that the' judgment appealed from must be reversed, and a judgment entered in accordance with the view's expressed in this opinion, with costs payable out of the estate to, all. parties who have separately appeared and filed briefs.
Ingraham, P. J., Laughlin, Clarke and Miller, JJ,,.concurred.
Judgment'reversed and judgment ordered as directed in-opinion, with costs payable out. of the estate to all parties who have separately appeared and filed briefs. Settle order on notice. ' •'