151 N.Y.S. 618 | N.Y. App. Div. | 1915
This is a suit in equity brought by a trustee for the construction of two deeds of trust, and for the judicial settlement of its accounts, and for a decree directing the distribution of the funds still held by it, consisting of personal property, the corpus of the trust fund and of income from both personalty and realty.
Israel Corse was the settlor of both trusts. One relates to personal property and the other to realty. The former was created by an instrument in writing executed by him and the plaintiff on the 1st day of March, 1812, and the latter by a like instrument, in which the wife of the settlor joined, executed on the twentieth day of April the same year. Both trusts were created for the benefit of James K. Polk, who was the son of the settlor’s sister. Each deed of trust gave the nephew the income of the property for life, and also gave him an unrestricted power of appointment to dispose of the corpus by his last will and testament. The deed of trust of the personalty provided that in the event of his failure to exercise the power of appointment, “then his next of kindred” should be entitled to the distribution thereof, “according to then’ respective relations or degrees of kindred; ” and in such event the other deed of trust provided as follows: “ Then all of the parties hereto do by these presents donate alien and convey unto the next of lawful kindred of said Polk and said kindred shall thereupon become invested and entitled to the whole of the said described premises and any and every benefit derived therefrom not so disposed of by said Polk in his last will as aforesaid as tenants in common per representation of lawful kindred.” It was therein further provided that upon the death of Polk, the trust and “ all right, title and interest ” of the trustee should “wholly cease and determine,” and that such right, title and interest “ shall immediately invest by force and virtue of this instrument in manner or Method or Medium or form heretofore set
Polk died on the 5th day of November, 1912, without, so far as appears, having exercised either power of appointment. The plaintiff alleges that it does not know whether Polk ever exercised either power of appointment, but that the defendant Tasker Polk, his half brother, the issue of a subsequent' marriage by his father to one not of the blood of the settlor of the trust, has been appointed the administrator of his estate on the theory that he died intestate. The plaintiff has attempted to make all parties who may in any event be interested parties defendant, and has had a guardian ad Mem appointed for any unknown parties who have not appeared, and a formal answer was interposed for them, submitting their interests, if any, to the protection of the court. The deeds of trust provide, in effect, that at the expiration of the trust, the trustee shall apportion among the personal representatives of the life beneficiary,, and those entitled to the respective remainders, any income from either trust accruing during a period commencing before, but terminating after the death of the life beneficiary, in proportion to the time before and after his death during which it accrued. The plaintiff alleged and proved that it holds such income with respect to both trusts; and it also alleged that it could not with safety to itself decide to whom to pay over such income, and that a judicial construction of both deeds of trust is required for that purpose.
I am of opinion that these facts entitle the trustee to maintain the action for a judicial construction of both deeds of trust. It is not necessary to decide whether, immediately upon the execution of the deeds of trust, the remainders by virtue thereof vested in the “kindred” and “lawful kindred,” respectively, of the life beneficiary, subject to be divested by their death during his life, or by the due exercise of the power of appointment. It is sufficient to say that it is quite clear that upon his death without his having exercised either power of appointment, the remainders, by virtue of the deeds of trust and without action on the part of the trustee, became vested absolutely in those answering the description of his “kindred” and his “lawful kindred” respectively. With
With respect to the personalty, it is perfectly clear, I think, that the settlor intended, in the event of the failure of the life beneficiary to exercise the power of appointment, that the remainder should go directly from himself and by virtue of the deed of trust as an assignment and transfer thereof, either, in the strict meaning of the word kindred, to those related to James K. Polk by blood who would answer the description of next of kin and heirs at law, or, in the broader sense, to those who would take as next of kin under our Statute of Distributions, if the statute included a husband or wife as next of kin; and since Tasker Polk would take under either construction, for the reason that James K. Polk left no widow, it is not material whether the word “ kindred ” was used in the strict or in the broader sense. The settlor was domiciled here, and executed the deeds of trust here, and the property was all within this State. Whoever was to take either remainder on the failure of the life beneficiary to exercise the powers of appointment was to take not through him, for he had no title or interest therein, but merely a power of appointment with respect thereto (Farmers’ Loan & Trust Co. v. Shaw, 127 App. Div. 657), but directly from the settlor under the deeds of trust, which, on the failure of the life beneficiary to exercise the powers of appointment, transferred and conveyed, respectively, the remainders to the “kindred” and “lawful kindred,” respectively, of the life beneficiary, precisely as if the remaindermen had been named therein. Subdivision 13 of section 98 of our Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18) provides that relatives of the half blood shall share equally with those of the whole' blood in the same degree in the distribution of personal property, and that their representatives shall take the same as representatives of the whole blood. In view of these provisions, there can be no question but that Tasker Polk took the remainder of the personalty. (See Champlin v. Baldwin, 1 Paige, 562; Graham v. Whitridge, 99 Md. 248; 66 L. R. A. 408, 419.) I see no reason why the rule applicable to the construction of words used in a
The learned counsel for the respondents contend that the exception in the statute excluding relatives of the half blood should be confined to those cases in which there are, in the same degree of relationship to the intestate, relatives of the whole and half blood, some, but not all, of whom are of the blood of the ancestor, and not to exclude the relatives of the half blood altogether, for under such a construction the property would escheat to the State if there happened to be no relative of any degree of the blood of the ancestor, and argues in support thereof that it would be most unreasonable to hold that the Legislature intended that relatives of the half blood should participate equally with those of the whole blood with respect to all of the realty of an intestate which did not thus come to bim from an ancestor, but that as to realty which came to him from an ancestor, the relatives of the half blood, not of the blood of the ancestor, could not inherit at all, even though
The learned court, therefore, properly held that Tasker Polk took all of the personalty and all income received by the trustee from the realty, and is entitled to all moneys held for distribution under either trust.
. It follows that the judgment should be affirmed, with costs.
Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.
Judgment affirmed, with costs.