185 N.Y. 162 | NY | 1906
The appellants are certain of the next of kin of Charlotte A. Mount, who died in the city of New York, March 27th, 1904, leaving a last will and testament. On the proceedings for the probate of the will the appellants put in issue the validity, construction and effect of the disposition of the testatrix's personal property contained in the following provision: "Ninth. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal of what nature and kind soever, and wherever situated to my executors who shall qualify as such under the Thirteenth clause of this my will as trustees upon the following trusts:
"To lease and manage the real estate, to invest and reinvest the personal estate, to collect and receive the rents, the interest and income of such real and personal estate, and to pay over to my sister Susan, the entire net amount of such rents, interest and income during the term of her natural life. Immediately after the death of my said sister, my said executors *165 or the survivors of them as such trustees shall divide the said residuary estate (real and personal) into as many shares of equal value as will make one for each of the children then living of my nephew Richard H. Mount and one for the lawful issue collectively, of each of the children of my said nephew (if any) who may then have died leaving such issue, and shall set apart one of such shares to each child then living, and one to such issue collectively of each deceased child, which shares shall be designated as the property of such parties respectively and my executors shall keep separate accounts of such respective shares.
"My said executors as such trustees shall pay over to the children of my said nephew if then of the age of twenty-five years otherwise on their arriving at that age the net income of the shares so set apart for them respectively during the period of their respective lives and after their deaths respectively they shall distribute and pay over such shares to the issue of such children respectively in equal portions per stirpes.
"My said executors and trustees shall pay over to and distribute among the issue of any deceased child or children of my said nephew who shall at the death of my said sister Susan be of the age of twenty-five years, otherwise as soon as they respectively attain that age their respective portions of the share so set apart to such issue collectively."
The answers of the appellants charge that the entire disposition is void as suspending the absolute ownership of personal property for lives not necessarily in being at the testator's death. The surrogate made a decree sustaining the trust for the sister during life, but refusing to determine the validity of the provisions disposing of the estate after the death of the sister on the ground, as stated in the decree, "owing to the uncertainty as to who will be entitled to inherit the estate after the death of the said Susan Mount, and the fact that no decision can now be made thereupon except at the hazard of adjudicating upon the rights of persons who are not parties to the present proceeding and that no present *166 necessity requires that any decision thereupon be now made." From the affirmance of that decree by the Appellate Division this appeal is taken.
Though the appeal to the Appellate Division was from the entire part of the surrogate's decree which deals with the construction and validity of the will, it is substantially conceded that the trust for the testator's sister is valid. It is contended, however, that all the dispositions of the property subsequent to the death of the sister, with the possible exception of the alternative gift in a single contingency, are illegal and void, that the remainder subject to the life estate of the sister vested in the next of kin of the testatrix, and that the appellants were entitled to have the surrogate so hold and adjudge.
Section 2624 of the Code of Civil Procedure provides: "If a party expressly puts in issue, before the surrogate, the validity, construction, or effect of any disposition of personal property, contained in a will of a resident of the state, executed within the state, the surrogate must determine the question upon rendering a decree; unless the decree refuses to admit the will to probate, by reason of a failure to prove any of the matters specified in the last section." It is insisted that this language is mandatory; that under the terms of the section the surrogate is required to consider and determine every question which may be raised by any of the parties as to the construction or validity of the will, and that he is without power to reserve or postpone the consideration of such questions until they actually arise and their determination becomes necessary to a proper disposition of the estate. We think that no such interpretation should be given to the section. The authority of the surrogate rests wholly upon statute. In 1870 (Ch. 359) the power was conferred upon the surrogate of the city and county of New York. By the Code of Civil Procedure it is conferred upon all surrogates in the state. Before these statutory enactments, while the surrogate necessarily had jurisdiction, for the purposes of distribution, to construe a will and decide on the validity of *167
its provisions (Matter of Verplanck,
We are now brought to a consideration of the existing circumstances in the present case, and to some extent to the construction and validity of the will (although in these latter respects our determination cannot be conclusive on the parties), in order that we may determine whether the discretion of the courts below was justifiably exercised, in withholding a determination of the questions the appellants sought to have adjudicated. The testator's sister is now seventy-six years old. The testator's nephew, Richard H. Mount, is over fifty years old. He had at the execution of the will two children who still survive, Edward, now aged 30, and Harold aged 23. His wife, the mother of these two children, is still living. The elder son is married, and pending this appeal has had a child born. The younger is unmarried. Bearing in mind the age of his wife and that of the children, the strong probability is that Richard Mount will have no other children by his present wife. She may die, he may marry again and have children. But for such an event to have any bearing on the present controversy the child must be born before the present equitable life tenant, a lady seventy-six years old, dies. Therefore, the chances are decidedly against such an occurrence. If it does not happen, and the two sons of the nephew now living survive their grandaunt, there will be only a single question to determine: that is, whether the direction in the will to divide the corpus into shares for all the children of the testatrix's nephew, which would include children who might be born after her death, renders the provision, so far as it applies to children living at her death, illegal and void. If this provision is valid as to those children, no other question can arise under the will, because the remainders given on the death of *169
those children are clearly good. We are inclined to the view that this question is a comparatively simple one. It is true that in determining the validity of a trust and whether testamentary dispositions contravene the statute forbidding the suspension of the absolute ownership of personal property for more than two lives in being, we must consider not what has actually happened since the death of the testator, but what might have happened. "It is not sufficient that the estate attempted to be created may, by the happening of subsequent events, be terminated within the prescribed period, if such events might so happen that such estates might extend beyond such period. In other words, to render such future estates valid, they must be so limited that in every possible contingency they will absolutely terminate at such period, or such estates will be held void. (Schettler v.Smith,
Other questions, such as in case of the death of Richard H. Mount before that of Susan Mount, leaving issue then surviving, the validity of the direction that their share shall be paid to such issue only as they respectively arrive at the age of twenty-five years may never arise. So also the provision for accumulation of income beyond the minority of the beneficiaries (a provision not quoted) may never become a practical question. A marked instance of the futility of hoping to decide in advance every question that may occur in the construction of a long and complicated will is shown by the fact that, despite the elaborate discussion in the well-known case of Manice v. Manice
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The judgment appealed from should be affirmed, with costs.
GRAY, EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment affirmed. *171