In re Lehman, 37 N.Y.S. 1086

In re Lehman

37 N.Y.S. 1086 | N.Y. App. Div. | 1896

Barrett, J.:

The gift here of $5,000 is absolute. The sum is to be paid to the legatee when she attains her majority. But the legacy vests upon the death of the testator, though payment is postponed. (Bushnell v. Carpenter, 92 N. Y. 270.) The vesting is not affected by the provision that it is ultimately to be paid with interest. It was held in Smith v. Parsons (146 N. Y. 116) that an accumulation of interest, payable to a legatee at majority, vested at once, and upon the legatee’s death during her minority, passed to her personal representatives. The intention of the testator here was not to postpone the vesting of either principal or interest, but merely to postpone. the period of enjoyment in possession, and in so postponing such period to secure to the. legatee the intermediate usufruct. The legacy is thus vested with, its? accruing-ffuit.

Nor is the result changed by what follows. The gift over in case of the death of the legatee during minority instead of suspending the vesting ab initia., denotes that the prior words point merely to the period when the legacy becomes absolute in, enjoyment,, *533(See Mr. Bigelow’s note, p. 855 of Jarman on Wills, 5th ed.) Jarman (p. 850) says that, if the testator has given over the fund, in case the legatee dies before the time named without issue, from which it is to be inferred that the legatee is to retain it in every other case, the natural conclusion is that the word is to be read as meaning “ payable ” or “ indefeasible,” and that the gift is vested, liable only to be divested on a particular contingency.

By the provision that upon the death of the legatee the bequest shall go to her issue, and in default of issue to the testator’s heirs, such issue or heirs, as the case might be, will take as substituted legatees upon the happening of the prescribed event, namely, the death of the original legatee.

These ulterior dispositions do not affect the main question. They are equally appropriate, whether the legacy was vested or contingent: Consequently they throw no light upon the testator’s intention, nor do they vary the clear expression of that intention to be found in the preceding provision.

The surrogate had authority, under chapter 173 of the Laws of 1891, to make the order in question. Whether it should be made , was a matter of discretion, which the record shows was fairly exercised. The surrogate was not bound to put the estate to the expense of a reference to ascertain the necessity for this trifling allowance. The petition is supported by an affidavit, while the executors rested upon an answer to the petition, merely ignoring the essential facts, and not denying what is stated in the affidavit.

The order should be affirmed, with costs.

Van Brunt, P. J., Rumset, Williams and Patterson, JJ., concurred.

Order affirmed, with costs.