12 Abb. N. Cas. 344 | N.Y. Sup. Ct. | 1883
John Munn, by his will, gave and devised all his property, real and personal, to his executors, with the direction to convert the same into money, at such time or times as to them should seem best, with full power of sale and authority to make payments on account, from time to time, out of any funds in their hands, among his legatees, before a final distribution of. the estate should be made. Upon such distribution, one-fifth thereof was directed to be paid over to his son Charles S. Munn, absolutely.
The testator died December 27, 1882, leaving a widow, Mary E. Munn, and two children, the infant defendants herein. He left creditors, but no property, except that to be derived from his father’s estate.
This action is brought for a construction of his father’s will and to determine the rights and interests of the parties who have succeeded to the latter’s estate. This question necessarily depends upon the following provisions of the statute:
•“ Whenever any estate, real or personal, shall be devised or
On the one hand it is claimed that this statute should be interpreted in conjunction with the statute of distributions under wdiich the widow and creditors of Charles S. Munn would have an interest in the estate. On the other it is Urged that such estate, upon the death of his father, vested absolutely in his children.
The primary inquiry is, what was the intention of the legislature as expressed in the statute above quoted. It contains no words excluding widows or creditors, and for this reason it is sought, inferentially, to include them in its provisions.'
Without the aid of the statute the legacy unquestionably would have lapsed, and we turn to the language which it employs to ascertain the legal status of those for whose benefit it was enacted. They are therein described as the “ surviving child or other descendant of the legatee; and if the language is to be taken literally, neither widows nor creditors are within this line of discrimination. The following cases were cited in support of the exclusive rights of the children : Van Bueren agt. Cash (30 N. Y., 383); Drake agt. Gilmore (52 N. Y., 389); Murdock agt. Ward (67 N. Y., 387); Luce agt. Dunham (69 N. Y., 386); Keteltas agt. Keteltas (72 N. Y., 312).
All of these cases involve the construction of a will wherein the testator had designated the class of persons who were to succeed to the interest of the devisee or legatee dying during his lifetime. It was the testator’s intention that the court sought to ascertain, and it held in each of them that a widow of a deceased legatee was not included in the class in such
The remaining' clause of the statute, “ as if such legatee or devisee had survived the testator and had died intestate,” may be given full effect in harmony with the foregoing instruction. It refers to the- share and proportions in which the legacy or devise shall vest in the children or descendants, and provides
The conclusion is that all of the fund in dispute is the property of the children of Charles S. Munn, deceased, and Mary E. Munn is entitled to its custody as their guardian upon giving the requisite security.