13 Mills Surr. 312 | N.Y. Sur. Ct. | 1914
The dispositive part of the will of the testatrix consists of five enumerated paragraphs. The first of these contains a direction to pay debts and funeral expenses; the second contains a bequest of all her household utensils, furniture, jewelry, wearing apparel, etc.; the third paragraph is the one
The paragraph in question, designated “ Third,” is as follows:
“ Third:—All the rest, residue and remainder of my estate, both real and personal property of every kind, character and nature whatsoever and wheresoever situated', of which I may die seized and possessed .of, I give, devise and bequeath to my executors hereinafter named, and the survivor of them {in trust nevertheless), to convert the same into cash, and divide the interest thereof equally among my children, Catherine Uelbling, Julia Klemt, Wilhehnina Witte and my grandchildren Carl Ehrbacher and Fritz Ehrbacher, and the survivor of them,, share and share alike, the share belonging to my said grandchildren shall he-deposited in banks for their benefit until the youngest of them shall arrive at the age of twenty-five (25) years, the issue of any deceased child however shall take the*315 share his, her or their parent would have taken if alive, per stirpes and not per capita.
u And until the distribution of my estate which shall take place ten (10) years after my decease, I give my said executors full power and authority to collect the rents, issues and profits thereof and to pay the net income thereof to my said daughters in the same manner as hereinbefore provided for the distribution of the corpus of my said estate.”
The contention is that the testatrix attempted- to create a trust to convert her property into cash and divide the proceeds thereof among her children and the two grandchildren; that she attempted to create a further trust in which .she fixed ten years after her death as the time for the distribution of the corpus of her estate and provided for payment of income in the meanwhile and fixed as the duration of said- trust a term of ten years; that the duration of the trust being measured in years and not in lives is contrary to the statute against' perpetuities and that therefore the trust is invalid, and the children of the decedent and the surviving grandchild are not entitled each to an equal one-fourth part of the decedent’s- estate.
I have given a great deal of consideration and thought to the language of the paragraph “ Third' ” of this will, which really consists of two paragraphs. In the first of these two the word corpus or principal is not used, and if that paragraph were read without considering its relation to the general scheme of the will and particularly in its relation to the second paragraph of paragraph “ Third ” and without applying rules of law which I think are well settled, I would be inclined to say that the language was insufficient to denote that the testatrix intended by it to make a disposition of the corpus of her estate. That paragraph standing alone would seem to indicate an intent to dispose of the interest on the proceeds of the sale of the property of the decedent only. But it is the duty of the court to endeavor to ascertain the intent of the testatrix, not from
In Phillips v. Davies (supra), the court held that where the real meaning and intent of the testator in his will appears clear, and “ its plain and definite purposes are endangered by inapt or inaccurate modes of expression; and we are sure that we know what the testatrix meant, we have a right and it is our duty to subordinate the language to the intention. In such a case the court may reject words and limitations, supply them or transpose them to get at the correct meaning.”
In Roe v. Vingut (117 N. Y. 204 [at p. 212]), the court says: “ In either event the strict language used in some portions of the instrument must give way for the purpose of arriving at the meaning of the testatrix based upon a perusal of the whole document. Upon such perusal, if a general scheme can be found to have been intended and provided for in the instrument-,. and such general scheme is consistent with the rules of law, and so may be declared valid, it is the duty of courts to effectuate the main purpose of the testatrix. To accomplish such object the meaning of words and phrases used in some parts of the will must be diverted from that which would attach to them if standing alone, and they must be compared with other language used in other portions of the instrument
“ Where it can be done without violence to the intention of the testator, that one of two possible constructions will be given to a clause which will sustain the intended devise rather than the one that will defeat it.”
The principles here enunciated seem to have been followed generally by the courts of this State. (See Dreyer v. Reisman, supra; Denison v. Denison, 185 N. Y. 438; Matter of Miner, 146 id. 121; Starr v. Starr, 132 id. 154; Williams v. Petit, 138 App. Div. 394; Walter v. Ham, 68 id. 381; Brookman v. Tuthill, 81 Misc. Rep. 28; Matter of Bartholomew, 82 id. 1.)
When the paragraph in question is read in -connection with the second subdivision of paragraph “ Third ” and particularly when we consider the statement therein as follows: “ to pay the net income thereof to my said daughters in the same manner as hereinbefore provided for the distribution of the corpus of my said estate,” it at once becomes apparent that, whether or not the testatrix did in fact by apt and accurate verbiage provide for a distribution of the corpus of her estate, she certainly must have believed that she had done so, otherwise the language quoted fails of its purpose. The will, however, in none of its paragraphs seemingly distributes tire corpus unless the language contained in the first paragraph of paragraph “ Third ” can be so construed. The first question then is; can an intention of the testatrix to dispose of the corpus of her estate be gathered from a consideration of paragraph “ Third,” and, if so, what was her intention?
The introductory language of paragraph “ Third ” indicates that the testatrix was then considering “ All the rest, residue and remainder ” of her estate, “ both real and personal property of every kind, character and nature,” and that she intended this to be the residuary clause of her will. The language in the second paragraph “ Third ” further leads to the conviction
If the first paragraph of paragraph “ Third ” is construed as disposing of the corpus of her estate, her scheme of testamentary disposition is clear and complete and she does not die intestate as to any of her property. In that event her three daughters and her surviving grandchild would receive the corpus of her estate, share and share alike. The share of the grandchild is to be deposited in a bank for his benefit until he arrives at the age of twenty-five years; and the shares of the daughters are to be paid to them after the lapse of ten years, they in the meanwhile to receive the income of their shares. If on the other hand the testatrix by the provisions of paragraph “Third” did not dispose of the corpus of her estate, it follows that she has died intestate as to the said corpus; the provisions of paragraph “ Third ” become unintelligible and unworkable and the whole scheme of testation is impossible and falls.
That a construction which brings about intestacy is not to be adopted if avoidable, and that where one of two constructions
It will be observed that the words used leading to the uncertainty are “ interest thereof,” which must be construed “ corpus thereof ” unless the results above stated are to follow. Having in mind all of the language of paragraph “ Third ” and the rules of law adverted to, I reach the conclusion that such construction should be adopted and that the testatrix intended that her executors and trustees should convert her property into cash, divide the corpus of her estate in the manner stated, ■deposit the share belonging to the grandchildren in a bank "for their benefit until the younger arrived at the age of twenty-five .years, and hold the shares belonging to each child respectively for ten years, in the meanwhile distributing the income thereof in the same manner as the corpus, that is to say, each daughter to receive the income of her share.
This is in accord with the contention made by the respondent that the testatrix intended to dispose of the corpus of her estate. I cannot, however, agree with her further contention, namely, that the fact that distribution shall not be made until ten years after the decease of the testatrix constitues an unlawful suspension of the power of alienation. Assuming that the construction which I have given to paragraph third is correct, the executors have been directed to convert the property into cash and divide the corpus of the estate equally among the decedent’s children and her two grandchildren. In referring to that part which her grandchildren are to take she uses the language, “ the share belonging to my said grandchildren,” and it is fair to assume that she regarded the other shares as “ belonging to ” her daughters respectively. In other words, in my opinion, the will contains words of present gift. If the will had provided that the property be held in trust for ten years and then divided,
Whether the provision that the share of the grandchildren be deposited in banks for their benefit until they arrive at the age of twenty-five years violates the statute as to unlawful accumulation, does not require consideration because the only surviving grandchild was over twenty-five years of age at the time of the death of the testatrix.
I accordingly construe the will as heretofore indicated and adjudge that the provisions of paragraph “ Third ” do not result in an unlawful suspension of the power of alienation.
Decreed accordingly.