150 N.Y.S. 335 | N.Y. App. Div. | 1914
Lead Opinion
The determination of the question involved in this appeal depends upon the construction to be given to the 13th clause of the will of Jane V. C. Cooper, dated the 28th day of May, 1889, and duly admitted to probate on the 30th day of April, 1890. The testatrix was a resident of the county of New York and died on the 4th day of April, 1890, leaving no husband, no descendants and no father or mother,, but as her heirs at law and next of kin three sisters and a niece, the child of a deceased sister. She left as her executor one Israel Minor, Jr., who subsequently died, and the plaintiff was appointed to execute the trusts contained in the will. By the 13th clause of the will the testatrix gave all the rest, residue and remainder of her estate to her executor, in trust, to convert the realty into money and to divide the net proceeds thereof together with the personalty of her residuary estate into two equal parts; “to set apart one of such shares for the benefit-of Elizabeth- Newton, of Fredonia in the State of New York and the other of such shares for the benefit of Dorns Bailey, Florence Bailey and Mary de Peyster Bailey, three
In Cammann v. Bailey (210 N. Y. 19), decided in the same month as the case of Dickerson v. Sheehy (supra), the court was able to discover in the will an intent that the controlling date was the death of the testator and that his intention was to make vested gifts to such son subject to the provisions for the widow postponing the time that the- son should have possession, and that such vested interest passed under the will of the son. In the course of his opinion Judge Chase said: “The intention of the testator being reasonably clear it is quite unnecessary to discuss the decisions made in other cases involving the vesting of property held in trust. Eules for the construction of wills are for the sole purpose of ascertaining the intention of the testator, and if the intention is clear and manifest it must control, regardless of all rules that have been formed for the purpose of determining their construction. * * * The law favors the vesting of remainders.” With the conclusion in that case Chief Judge Cullen concurs for the reasons stated in his dissenting opinion in Dickerson v. Sheehy (supra), but stated that if the decision in that case were to be followed he should be constrained to vote for the affirmance of the order. No reference is made to the Sheehy case in the prevailing opinion, but the chief judge assumes that the decision of the Sheehy case proceeded on the theory stated by the Appellate Division — that the rule that a gift of income tends to vest in the beneficiary the capital of which the income is given, was inapplicable because in Dickerson v. Sheehy {supra) the principal of the fund was not severed from the general estate, but the bequest was only of a part of the aggregate income of the whole residuary estate, and I suppose we must assume that the decision of the court in Dickerson v. Sheehy was upon that ground. Chief Judge Cullen then concludes by saying: “ The result of the rule as to the construction of a gift, confined to a mere direction to divide and pay over, has been productive of more litigation than any other rule as to the construction of wills. That nearly all laymen and very
At the beginning of the 13th clause there is an equitable conversion of all the testatrix’s real estate into personalty. The executor is directed to “ convert the realty into money at public or private sale and at such time or times and upon such terms as in his judgment may appear for the best interests of my estate.” This seems to be an imperative power of sale and there resulted an equitable conversion of realty into personalty. The trustee is then to divide the net proceeds thereof together with the personalty of the residuary estate into two equal shares and to set apart one of such shares for the benefit of Elizabeth Newton. It seems to me that here is a declaration of intention that this testamentary provision was to be for the benefit of Elizabeth Newton, and it was not the intention of the testatrix that her heirs at law or next of Vin should profit by any portion of her estate. At the time the will was made Elizabeth Newton had two sons living who were minors, and one moiety of the residuary estate was given to the trustees for her benefit. The share for her benefit was then set apart for her, to be held, however, by the trustees to accomplish the purpose of the testa
With much diffidence and a confession of my inability to deduce from the authorities any rule that can aid in the construction of a will presenting these features I can only say that endeavoring to the very best of my ability to follow the directions of the Court of Appeals it seems to me that we are required to hold that in this case it was the intention of the testatrix that Elizabeth Newton and her children, and they only, should have an interest in this moiety of the remainder of her estate and that, therefore, the estate vested and passed on the death of Elizabeth Newton to the legatees or next of kin of her children.
It follows that the judgment appealed from should be affirmed, with costs to those appearing in this court, payable out of the estate.
Clarke and Hotchkiss, JJ., concurred; Dowling and Scott, JJ., dissented.
Dissenting Opinion
While the “ pay over ” rule has been often criticised, even as late as Cammann v. Bailey (210 N. Y. 33), where Chief Judge Cullen referred to it as having been productive of more litigation than any other rule as to the construction of wills, and as one which unsettles title to property, and has been fruitful of litigation and of contradictory decisions; still even he admitted that “ the rule has obtained so long that entire relief from it cannot be obtained except by legislative action.” I deem the rules laid down in Matter of Crane (164 N. Y. 71) not to have been modified or affected by any subsequent decisions. They were, first, “ Where the only words of gift are found in the direction to divide or pay at a future time, the gift is future, not immediate; contingent and not vested; ” and, second, “ Where the gift is of money and the direction to convert the estate is absolute, the legacy given to a class of
Scott, J., concurred.
Judgment affirmed, with costs to those appearing in this court payable out of the estate.