103 N.E. 717 | NY | 1913
Lead Opinion
Order affirmed, with costs, and question certified answered in the affirmative; no opinion.
Concur: HISCOCK, CHASE, COLLIN and MILLER, JJ.
Dissenting Opinion
I dissent from the decision about to be made and vote to reverse the order appealed from. A general rule is that where there is no present gift, but a direction to executors or trustees to pay or divide at a future time, the vesting in the beneficiary will not take place until that time arrives. But the rule has many exceptions, and in fact it may be fairly said that it is a rule more honored in the breach than in the observance. There is, however, another general rule, also applicable to this case, that where the language is susceptible of a construction which will avoid disinheriting the issue of a child, that construction should be adopted. (Scott v. Guernsey,
If the ground on which a majority of the court below based the conclusion reached by them is to be upheld it *593 will be the first time, as far as I can find, that the rule that a direction to pay or divide at a future time makes a devise or legacy contingent has been applied by this court where the result of the rule would be to exclude both the testator's child and the issue of that child from taking, either directly or through inheritance from their parent, an estate held in trust for the parent. On the contrary, where such a result would follow I think that the court has uniformly held the rule inapplicable. To justify this assertion I will now review the cases, enumerating first those where the rule was held to apply.
In Teed v. Morton (
Thus in no one of these cases would the effect of the decision be to deprive any descendants of a testator from sharing in his fortune either directly under a testamentary gift in their favor, or indirectly through the bounty of their parents. Under the decision about to be made neither the testator's children who might die before reaching the prescribed age of twenty-five nor their issue, if they had any, could take, but the testator be declared to have died intestate as to such share or shares, thus *595 destroying the dominant purpose in the mind of the testator.
Now to review the cases on the other side. In Warner v.Durant (
In Bowditch v. Ayrault (
As a result of this review of the cases, I think the rule should be considered as established that a gift by means *597 of a direction to divide or pay over at a future time will not be deemed contingent so as to fail on death before that time, unless provision is made for a substituted gift in favor of the issue of the first devisee or legatee.
The rule as to a direction to pay over at a future time does not obtain where there is a gift to the legatee of income accruing prior to that time. (1 Jarman on Wills, p. 802.) This is conceded in all the cases in this court. The majority of the court below held the principle inapplicable because it was thought that there was no severance of the share before the time of distribution. Whatever force there might be in this objection, if the question were an original one, it is settled otherwise by authority. The case of Vanderpoel v. Loew (supra) involved the same question. A comparison of the provisions of the will in this case with those of the will in the case cited, and especially a perusal of the opinion of Judge FINCH (at pp. 177 and 178), will show that the struggle to work out a severance of shares was much more difficult in that case than in this. Besides, if there was no severance of the share in the present case, the whole trust was void as suspending the power of alienation for more than two lives.
I may add that I concur generally in the view expressed in the dissenting opinion of Presiding Justice INGRAHAM below.
GRAY and WILLARD BARTLETT, JJ., concur.