103 A.D. 523 | N.Y. App. Div. | 1905
Judgment affirmed, with costs, on opinion of the court below.
The following is the opinion of Soott, J., delivered at Special Term:
This action is brought for a judicial construction of the will of David Stewart Denison, a resident of the city of New York, who died without issue, leaving a widow, a brother, John M. Denison, a sister, Mary L. Russell, and the children of a deceased sister. At the time of testator’s death both his brother, John M. Denison, and his sister, Mary L. Russell, had living children and grandchildren. By the 4th clause of his will, as amended by a codicil, he directs his executors to set apart and hold so much of his estate as will be sufficient to provide an annuity of $10,000 for his wife during her life. It is conceded that this will require the executors to hold the entire estate for this purpose. The controversy arises over the 7th clause of the will, which undertakes to dispose of the residuary estate. The clause is long and involved and but indifferently well punctuated. Its purport, however, is plain, and no difference arises in relation thereto. It will not be necessary, therefore, to quote it at length. It gives the residue of the estate to the testator’s brother, John M. Denison, and sister, Mary L. Russell, and the survivor of them “ and the heirs, executors, administrators and assigns of such survivor,” in trust for the use and benefit of the children of said brother and sister living at the time of testator’s decease, and the issue then living of any deceased child or children of either the brother or sister. The children of the brother and sister who survive the testator are to take per capita, and the children of any deceased child are to take the share to which the parent would have been entitled if living. The trustees, as soon after testator’s death as practicable, are to divide the residue of the estate into shares or portions, and to hold the shares so set apart for the “ respective ” use and benefit of the said children and descendants of the testator’s said brother and sister during the term of their “ respective ” lives, and from and immediately after their respective deaths to further hold the share or portion thus set apart for such deceased child, children or descendants “ in trust for his, her or their child or children, and the issue, if any,
The next provision of the will to which attention is directed is that which provides for the disposition of the share held for any life beneficiary upon his or her death, leaving issue. The provision, in this regard is as follows: That upon the death of any life beneficiary the trustees shall hold the share or portion set apart for said life beneficiary “ in trust for his, her or their child or children, and the issue, if any, of any of his, her or their deceased child or children who shall be living at the time of his, her or their decease respectively, Ms, her or their executors, administrators and assigns, if more than one, as tenants in common, but so that the issue of any deceased child, children or descendants of my said brother and sister shall take per stirpes only the part or share or respective parts or shares to which said deceased child, children or descendants would, if then living, have been entitled.” The effect of this provision was to give the share of any life beneficiary dying, and leaving issue, to such issue, immediately upon the death of the parent. It was tantamount to a direction to the trustees to pay over. There is nothing in the will to indicate that the testator intended to set up any new trust of any such share, notwithstanding he uses the words “ in trust.” At the most it creates only a trust for distribution, which, while not technically a trust at all, is valid as a power. The trustees are not charged with receiving or paying out the income — no period is set for the continuance of the trust- and no gift over is made of the principal. The evident purpose of the testator and the effect of the language used by him was that in the event of the death of a life beneficiary, leaving children or descendants, the share which had been held in trust for the decedent would immediately pass to and vest in Ms or her issue, the sole duty left to the trustees being that of paying over. (Manice v. Manice, 43 N. Y. 384; Woodgate v. Fleet, 64 id. 566, 573.) The next provision of the will and one which is - obviously invalid, is that which undertakes to dispose of the share of any life beneficiary who may die leaving no person surviving capable of taking under the provision last considered. As to any such share the will undertakes to set up a system of cross remainders by which the share will be divided and distributed