Einstein v. Michaelson

107 Misc. 661 | N.Y. Sup. Ct. | 1919

Newburger, J.

Action for construction of a will. The testator died February 26, 1919. The will was executed November 12, 1912. At that time he had a wife and eight children living. A son, Arthur, died February 2, 1914, leaving him surviving one child, Hortense, five years old. The testator, by an order of the Surrogate’s Court of this county, on the 30th day of October, 1914, adopted Hortense. The will of the testator devised one-half of his estate to the executors in trust to invest, and to pay over the income to his wife during the term of her natural life, and on her death to divide the said one-half of his estate into as many equal parts as there shall be legal issue of his surviving at the time of the decease of his wife, and also one part for each of his children deceased, provided such deceased child shall have left lawful issue such child surviving. As to the other one-half of the estate, he directed it to he divided into as many parts as he shall leave children him surviving, with the exception of the part or share representing the interest of his son Arthur, as to whose share he provides that a trust be created and the income paid over to Arthur during his natural life, and on his decease, if he shall leave any children him surviving, the income s"hall be applied to the support and education of said children, until the youngest of such children living at the time of the decease of the testator shall live to be twenty-one years, or, on the death of said youngest child before arriving at the age of twenty-one years, then to distribute the principal of said share among the legal issue of said Arthur. As Hortense is the only child surviving Arthur, she is vested with an equal share of the remainder subject to the life tenancy; in other words, if she lives to be twenty-one years she shares equally with the seven children of the testator. This applies not only to the one-half of the estate in trust for the life tenant, but the other one-half of the estate provided for in the 5th and 6th clauses of the will. The contention of the general guardian that because Hortense had, subsequently to the death of her father, been adopted by "the testator, her grandfather, she was entitled to take both as child and as grandchild is untenable. The provisions of the will are clear and show the intention of the testator, and to place such a construction thereon would be unreasonable.

Judgment for plaintiffs.