43 N.Y.S. 575 | N.Y. App. Div. | 1897
During the year 1853 Thomas L. Clark of the city of Hew York died, leaving a last- will and testament, by which certain trusts were created, of which the plaintiff subsequently became the trustee. He has brought this action, after the death of the beneficiaries of the trusty asking that the court determine who are entitled to the fund now in his hands, and that it adjudge a distribution of - that fund according to that determination. The action requires at the hands of the court a construction of that portion of the will creating the trust.
At the hearing before the referee four different sets of people: appeared and claimed to be entitled to this fund of $10,000. One claim was made by those who were either next of kin of the: deceased widow of Mrs. Gillespie’s son or legatees under the will off the deceased father of Mrs. Gillespie’s children. They claimed that, the gift vested in the children at the death of Mr. Clark, and these-claimants as representing them were entitled to the whole principal ' sum of $10,000.
Another claim was made by those who insisted that they were the-next of kin of the children and were entitled to have this money paid to them by virtue of that portion of the will quoted above,, which directed, as they said, that it should be paid to the lawful representatives of the children.
- The remaining claimants were the next of kin or the personal representatives of the next of kin of the testator, and they claimed that this gift to the children never vested, but that it was a lapsed legacy and went to the next of kin of the testator. The dispute
Between these four classes of claims the referee decided that the .gift to the children did not vest, but was contingent upon their surviving their mother; that, as at the death of Mrs. Gillespie there were neither -children nor issue of children, the gift failed, and that, being a lapsed legacy, it was property undisposed of by the will, •and went to those who were the next of kin of the testator at -the time of his death. Whether that conclusion of the referee was collect is the question presented by this appeal.
This question is to be decided solely upon consideration of that qiortion of the will of Thomas L. Clark quoted above. An examination of it shows that the trustees held all the property as one fund for the benefit of the wife of Mr. Clark during her life, and "the fund of $10,000 for the benefit of Mrs. Gillespie only came into existence after the death of Mrs. Clark, the wife of the testator, ■and its existence was dependent upon the survival of Mrs. Clark by Mrs. Gillespie. When, however, it appeared that Mrs. Gillespie had survived her mother, this fund of $10,000 was set apart for her benefit. During her life the trustees were required to pay -the. income of it to her. The will did not give the fund, after her •death, directly to anybody. The provision of the will was that it was to be paid over to and divided among all her children, and that the issue of any child who was .dead was to take his or her deceased parent’s share. That necessarily implies that the children or .the descendants of the children of Mrs. Gillespie were to be the objects of the testator’s bounty. This bounty they were to receive, not by virtue of a direct gift from the testator, but through the medium of a power in trust vested in a trustee, to be executed after the death of their mother, so that the executors and trustees might devote' the income of the estate until the death of Mrs. Gillespie, to such pur
-But another class of claimants insist that they are entitled to this fund because the testator directed that it should be paid “ to all her ■children, share and share alike, and to their lawful representatives forever.” These claimants contend that the words “ lawful representatives ” should be construed to mean next of kin, and that the •direction to pay to the lawful representatives of the children should be held to. be a substituted gift to the next of kin in case there were no children living at the time when distribution was to be made. An examination of the will shows that the testator provided for the ■contingency which might take place if Mrs. Gillespie’s children ¡should die before her, because he directed that the fund should be distributed among the children and the issue of such children as ■should be dead, the words of the will being that “ the issue of any such child who may be then dead to take his or her deceased parent’s share.” The testator thus provided for the death of either ■of Mrs. Gillespie’s children, leaving issue. If he had intended to provide for any other contingency it is fair to suppose that he would have done it by words apt for the purpose and not by indirection, ¡and it is not at all likely that he intended to use the words “ lawful representatives” for the purpose of providing for another contingency which was of no particular interest to him and probably never occurred to him. The reading of the clause shows quite •clearly,. we think, that the words “ lawful representatives ” were
We conclude, therefore, that this was a lapsed legacy. Ordinarily, ■a legacy is said to lapse when the legatee has' died before the testator, but the same expression may properly be used to describe a legacy which has failed, either because of its invalidity, or because the contingency upon which alone it was to vest has not taken place. ( Van Wyck v. Bloodgood, 1 Bradf. 154.)
All concede that this legacy having lapsed, it went to the next of kin of the testator, and the only dispute left to be-settled is whether it should go to those persons who answered that description-at the ' time of the, death of the testator, or only to such persons as answered that description at the time when the life estate of Mrs. Gillespie came to an end. Mrs. Avery who was the sole next of kin of the testator at the time of the death of Mrs. Gillespie, claims that the gift lapsed at the death of Mrs. Gillespie, and not at the death of the testator, and that the fund should be given to her, and not to those who, at the time of the death of the testator, would be entitled under the Statute of Distributions.-
As we have seen, the interest of the children, of Mrs.. Gillespie
This interest, therefore, was an estate of the testator, not disposed of by the will, and it follows the usual rule that the personal property of the testator, not disposed of by will, goes to those who are entitled under the Statute of Distributions at the time of his death. The rule in that regard is laid down by the chancellor in the-case of Hoes v. Van Hoesen (1 Barb. Ch. 379). He says: “ Where a reversionary interest in personal property is not disposed of by the will of a testator, it does not necessarily belong to those who may happen to be- his next of kin at the termination of the particular estate, or
There was- no general residuary bequest in this will. The only residuum spoken of was the rest and residue of the principal moneys, excluding the $10,000 fund which is the subject - of this actiom. That fund, therefore, went to those whowere entitled under the
The will provides that the devises and bequests made to Mrs. Clark, the widow of the testator, are intended to be in lieu and satisfaction of every claim of dower and thirds which she might have to his estate or effects, real or personal, or any part thereof. For that reason the next of kin of • the widow have no interest in this, fund, and the conclusion of the referee that it should be divided among the next of kin of the testator at the time of his death, is correct, and. the judgment should be affirmed, with costs.
Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ,,, concurred.
Judgment affirmed, with costs.