200 A.D. 739 | N.Y. App. Div. | 1922
The testatrix left no father, mother or direct descendant and no brother and only the one sister named in the will and codicil. She was survived by her sister and by the nephews and the niece named in the will and by other nephews and nieces.
It is manifest that she intended and attempted to dispose of all of her property by the will and codicil to the exclusion of her heirs excepting as provisions were made therein for the benefit of some of them. This she had a perfect right to do, and the point presented for decision is whether by the will and codicil, which were duly executed, she manifested such intent in the manner prescribed by law so that it may be carried into effect.
It will be observed that neither the will nor the codicil created any express trust in the executrix and executor with respect to the real estate during the life of the sister of the testatrix and that by the will she expressly gave to her sister for life the use of all her real estate and leasehold property other than the premises she devised to her outright by the second clause of the will; and by the codicil she expressly reaffirmed this by providing that her sister should have the sole right during the term of her natural life to all the rents arising therefrom. It is perfectly clear, therefore, that both by the will and the codicil the sister of the testatrix was given the use and enjoyment of the other real property for life. It is equally clear that by the will she attempted to make her executor, upon the death of her sister, trustee of an express trust to collect the rents, issues and profits of the remainder of the real property and to pay therefrom taxes, assessments, interest on mortgages and the expenses of keeping the premises in good repair and to divide” the surplus into five equal parts and to pay one part to each of the four nephews and to the niece therein named, if living, and in the event of the death of a nephew or of the niece, then to pay the part intended for the deceased nephew or niece to the institution taking the remainder on the death of such nephew or niece as prescribed in the 5th clause of the will wherein she provided the order in which the institutions should take the respective undivided fifths of the remainder. It is evident also that she intended that the respective institutions should take
The most troublesome point presented for decision is with respect to whether there is a valid disposition by the codicil of either or both of the remainders into which the testatrix upon the death of her sister so divided the remainder for the purpose of giving the surplus income of the specified parcel to one nephew and one-fourth of the surplus income of the rest of it to each of the others. The attempted devise of these remainders is in the final sentence of the codicil, which immediately follows the sentence giving the surplus income of the specified premises to one of her nephews and one-fourth of the surplus income of the remainder to each of the other three nephews and to the niece. By the codicil the testatrix says, “ After their deaths, I give, bequeath, and devise to ‘ The Sisters of Charity of the St. Vincent de Paul,’ ” describing it as a corporation and specifying the particular institution under its charge which she desires to have the benefit of the devise. The words “ their deaths,” as here used, plainly refer to all of those mentioned in the preceding sentence, viz., the four nephews and the niece, who were given life estates; and, therefore, the reasonable inference is that she was attempting to make some disposition of the property in which they had life estates and that embraced all of the remainders including the specified premises, the surplus income of which for life she had given to one of her nephews. All that remained of that property not otherwise disposed of, was remainders, viz., the remainder in the specified property, the trust with respect to which was to fall in on the death of the nephew who was to take the income thereof during life, and the undivided fourths of the other remainder, the trust with respect to each of which was to fall in
In Eidt v. Eidt (supra) in construing a will, the word “ and ” was supplied to give effect to the intent of the testator, and the Court of Appeals, in declaring the effect to be given to the plain intent' of the testator, said: "It overrides the inadequacy or
Appellant Hamersley was appointed special guardian to represent certain infant heirs and incompetent heirs in the accounting proceeding, and appellant Cuvillier was appointed special guardian of the same heirs in the proceeding for the construction of the will. It would seem that the same special guardian should have been appointed in each proceeding; and since that was not done, one of the special guardians should have been discharged when the proceedings were consolidated. Failure to do that has led to an appeal by each of the special guardians, notwithstanding the fact that the appeal presents no points with respect to the accounting excepting those which depend on the validity and construction of the will, and the cestuis qui trust have no interest unless the testatrix dies intestate with respect to some or all of the remainders in the real property. But if any of the trusts attempted to be created by the will and codicil should be held to be invalid, then other questions, which arose on the accounting, involving the application of the Statutes of Limitations, would require consideration. In the circumstances, therefore, it cannot be said that the appeal by the special guardians or by either of them was unwarranted.
It follows that the decree should be affirmed, with separate bills
Clarke, P. J., Smith and Merrell, JJ., concur; Greenbaum, J., dissents.
Decree affirmed, with separate bills of costs to the respondents separately appearing and to each of the special guardians, payable out of the estate.