122 Misc. 73 | N.Y. Sur. Ct. | 1923
Elizabeth P. Boggs died June 13, 1918. Her will was admitted to probate by the Surrogate’s Court of Greene county September 3, 1918.
By the 4th clause of the will the testatrix devised and bequeathed her right, title and undivided interest in real property in Philadelphia, Penn., to the Real Estate Title Insurance and Trust Company of Philadelphia, and Henry M. DuBois, attorney at law, of the same place, to hold said property in trust during the lives of her sister Anna C. Tamagno and her brother Daniel B. Tamagno, with directions to collect the rents, issues and profits arising therefrom and after paying all necessary repairs, taxes and water rents chargeable to her interest in said real estate and after paying all charges incident to the administration of the trust to pay over the net rents, issues and profits therefrom to the following named persons in the following amounts: $3,000 annually to her sister Anna C. Tamagno during her life, said sum to be paid in monthly installments; $1,500 annually to her brother Daniel B. Tamagno during his life in semi-annual payments, free from liability for his debts, contracts and obligations and free from all attachments, assignments and executions; $400 annually in semi-annual payments to her niece Claire Tamagno during the continuance of the trust; $600 annually in semi-annual payments to her nephew Paul Tamagno during the continuance of the trust. All the rest, residue and remainder of the net rents, issues and profits arising from said real property during the continuance of the trust to the following named persons: To her brothers John D. Tamagno, Daniel B. Tamagno, her sisters Anna C. Tamagno and Grace Tamagno, her nephew Paul Tamagno and her niece Claire Tamagno, share and share alike.
By the 5th clause of the will it is provided that if it shall become necessary or advisable to sell the said property before the termination of the trust, the trustees are empowered to sell the same and to hold and invest the proceeds of the sale for the purposes of the trust set forth in the said 4th paragraph of the will.
By the 6th clause of the will it is provided that upon the death of the said Anna C. Tamagno and Daniel B. Tamagno, when said trust shall terminate, the right, title and interest of the testatrix in said real estate shall be sold by the trustees, if the said real estate is still held by them and after deducting the necessary expenses incident to said sale and the expenses of administering the trust, to pay the net proceeds from said sale to the following named persons and in the following amounts: To her niece Claire Tamagno the sum of $15,000 absolutely; to her nephew Paul Tamagno the sum of $20,000 absolutely; to Margaret Towey, if
By the 7th clause of the will, all the rest, residue and remainder of all her real and personal property she gives and bequeaths as follows: To the National Soldiers’ Home located at Washington, D. C., one-half portion of her residuary estate absolutely, in trust, to invest the same and collect and pay the interest and income therefrom for the general uses and purposes of said home, to be known and designated as “ The Thomas K. Boggs Trust ” in memory of her husband; to the “ Servants of Relief of Incurable Cancer,” located at Hawthorne, N. Y., one-quarter portion of her residuary estate absolutely, in trust, to invest the same and collect and pay the interest and income therefrom for the general uses and purposes of said institution, to be known and designated as “ The Caroline M. Boggs Trust,” in memory of her said husband’s mother; to the New York Association for the Blind, located at 232 East Fifty-ninth street, borough of Manhattan, New York city, one-quarter portion of said residuary estate absolutely, in
John D. Tamagno died intestate before the testatrix.
Grace Tamagno survived the testatrix but died intestate October 25, 1921. Letters of administration on her estate were issued by the New York County Surrogate’s Court on August 4, 1922, to Daniel B. Tamagno. It appears that the trustees have in their hands an income balance of approximately $4,399.40 of which $2,885.12 represents the net income of the trust which would be payable to John D. Tamagno if living and $1,514.28 represents the net income of the trust which would be payable to Grace Tamagno if living.
I am asked to determine two questions: First, who is entitled to receive the income received and accumulated, which would be payable to John D. Tamagno if living; second, who is entitled to receive the income for the remainder of the trust period which would be payable to Grace Tamagno if living.
“ The supreme test of testamentary construction is the intention of the testator.” Rezzemini v. Brooks, 118 Misc. Rep. 791, 793; Central Trust Co. v. Egleston, 185 N. Y. 23, 29.
Each will must be read and construed with reference to its peculiar provisions. Hodgman v. Cobb, 202 App. Div. 259, 264.
After a careful reading of the whole will the scheme of the testatrix seems to be clear and her intention manifest. She owned some personal property and an interest in the real estate in Philadelphia. She had brothers and sisters and a nephew and niece that she wished to provide for, and after making it clear that the expenses and all taxes should be properly taken care of so as to in no way hamper or embarrass her beneficiaries under her will, she places in the hands of her trustees the real estate owned by her to be held by them during the lifetime of two persons in being, evidently for the purpose of providing annual incomes to two of the persons named during the continuance of the trust, and to two of the persons during fife. It will be noted that the testatrix makes no provision whatever for the disposal of the income by the terms of the will in case of the death of any of the beneficiaries named in this clause of the will during the fife of the trust. She, however, does discriminate as between the beneficiaries when she gives to
Each of the legatees who take the residue are to take the same during the continuance of the trust. In another clause of the will she seems to be careful as to the disposition of the property in case of the death of the parties named.
Her intention evidently was that these beneficiaries should have the benefit of the rents, issues and profits in the manner designated by her until the death of the life beneficiaries or until the falling in of the trust and at the end of the trust period she then by a clear provision of her will directs the sale of her real property and from the proceeds of the sale she fixes the definite amounts to be paid from that particular property to the legatees therein named, and after they have been paid the amounts specified, the rest, residue and remainder of all of her property, both real and personal, is given to the residuary legatees named in her will and she seems to be particularly interested in the residue and in the manner of disposing of the property that is left to such residuary legatees. The amount given to the Soldiers’ Home is to be known and designated as “ The Thomas E. Boggs Trust,” and the amount given to the “ Servants of Relief of Incurable Cancer ” is to be designated as “ The Caroline M. Boggs Trust,” and the amount given to the New York Association for the Blind is to be designated as “ The Eliza B. Tamagno Trust,” so that she evidently expected a substantial residuum for the purpose of properly taking care of the residuary legatees.
John D. Tamagno died before the testatrix. He was one of the six residuary legatees of income. The legacy to him lapsed. It is clearly settled that in a will of personal property a general residuary bequest carries to the residuary legatees all the personal property of the testator which is not otherwise disposed of by the will,including all lapsed legacies, unless a clear intention to the contrary
I am asked to determine who is entitled, not to the ultimate payment of the surplus income, but to the present payment, and it is contended that section 63 of the Real Property Law is controlling in this case. Such section provides that when in consequence of a valid limitation of an expectant estate there is a. suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits are undisposed of and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.
It is the law that when it is ascertained where or to whom such property is payable, the amount may be paid at once or as fast as the rents and profits accumulate. Who then represents the next eventual estate? If I take into consideration the intent of the testatrix as well as the different decisions bearing upon the question I think in this case that I can arrive at a satisfactory conclusion.
It is contended by the attorney for the residuary legatees that such residuary legatees represent or are the parties presumptively entitled to take, while on the other hand the attorney for the administrator contends that the legatees who would be interested in the moneys arising from the corpus of the estate when sold are entitled to the next eventual estate.
I am referred to Matter of Harteau, 204 N. Y. 292, and it is strenuously urged that the decision in that case is controlling in this case. I am also referred to Matter of Kohler, 231 N. Y. 353.
In Matter of Harteau, to which I am referred, the whole scheme and object of the decedent was to provide a fund for the payment of an annuity to his wife for fife, and to his sister Frances Wheeler, and his niece, the contestant, his only heirs at law and next of kin, and the preservation meantime of his wife’s home in the city and his country home. To accomplish this object he had given not only the income but so much of the principal of the estate from time to time as may be necessary. The residue of his estate after his wife’s death was for the erection of a statue of Lafayette and after that was fully accomplished the residue, if any, to be divided among certain charities as named in the 12th clause of the will. By the 11th clause of the will it was provided: “ Upon the death of my said wife, Margaret N. Harteau, and the other provisions of this my last Will and Testament having been complied with,
It will be noted that this decision throws some light upon section 63, which has seemingly been misunderstood in some of the decisions that have been rendered. The next eventual estate is represented by one who has an estate in expectancy which grows either out of the language of the will or under some statute. Where an amount is given to a legatee which is definite and fixed, such amount can in no manner be increased nor was it intended by section 63 that the next eventual estate should take as a gift under section 63 what they would not be entitled to under the terms of the will or under the Statute of Distributions.' That section is intended to designate the particular person who is to receive the funds that are not otherwise disposed of and it is given rather as a definition or for the purpose of designating the particular person, but does not in any manner give any extra amount or additional amount to a legatee whose legacy is fixed by the terms of the will.
The Harteau case decides that the amount received by the executors and trustee as proceeds of the surplus dividends belonged to the city and must be paid by the executors to the city (for the purpose of erecting the monument) and credited on account of the legacy for the statue, and if that case is applied to the case that we are considering the result would be that the accumulated rents and profits in the hands of the trustees would be applied in proportion to the amount of the definite legacies given to each of the legatees, on the sale of the real estate, named in the will of the decedent to be credited upon the amounts that they would be entitled to receive at the end of the trust upon the sale of the real property.
The difference between the two cases is that the legacy in the Harteau case was to be paid to a legatee out of the general fund,
Persons presumptively entitled to the next eventual estate are those who are entitled to the estate which is to take effect at the end of the period during which the rents and profits are undisposed of or are not validly accumulated. Under this definition or statement the person to take must be entitled to the estate, or at least an interest in the estate which has reference to the particular property to be disposed of and in this case the particular property to be disposed of is the rents and profits. The legatees to whom are payable the several amounts after the property is sold out of the corpus of the estate cannot be said to have any interest in these rents and profits because their only interest is their definite interest to be paid from the corpus of the estate and not from the rents and profits. In order to make the matter clearer, if possible, section 63 of the Real Property Law does not create any interest or right not given to a legatee, devisee or interested party that he is not given by the express terms of the will or by the Statute of Descent and Distribution. It is not a statute that fixes the rights of parties but designates the persons who shall receive the funds under the law and this statute does not give to a legatee any greater amount than he is entitled to receive under the terms of the will. In other words, we cannot select a person who is named in the will and given a legacy as a person presumptively entitled to the next eventual estate and say that he is entitled to the accumulations, excepting that he may be entitled to receive the same instanter or at some future time but only then to be applied towards the payment of the legacy given to him. If we study the language and meaning in the Harteau case we find that although the court directed the sum of $17,722.39 to be paid to the city of New York towards the erection of the Lafayette monument said amount was only to be credited towards the payment of such legacy and the residuary legatees would be the recipients ultimately of practically the same amount that they would have been paid had it been decided that the residuary legatees were entitled to the next eventual estate.
The presumption does not arise in this case that the donor of the property may naturally be supposed to intend that the income should go to the same person to whom the land is given out of which the income arises because in this case such a presumption would be in direct conflict with the express language of the will, which gives to the legatees named only the proceeds arising from the corpus of the estate which is fixed and definite.
If such presumption could arise it would be in favor of the residuary legatees who take all the proceeds of the real estate and all other property after the definite amounts are paid to the legatees out of the corpus of the real estate.
After considering Matter of Kohler, supra, I am satisfied that the facts in that case are so different that the decision would not apply to this case. Even under that case, Chase, J., who wrote the opinion, expressed his views, in effect, that the persons presumptively entitled to the next eventual estate, so far as the trust funds for the purpose of providing the $25,000 a year to each of the children is concerned, are the persons entitled to such trust funds upon the death of the daughters respectively. He further states (p. 377): “ A majority of my associates, however, are of the opinion that, inasmuch as the trustees are only entitled strictly to set aside a trust fund sufficient to produce an annual income, of $25,000 in the case of each beneficiary named, any income which may have accumulated between March 16, 1915, and the date when the trusts are actually set aside, or which may be produced after the trusts are set aside in excess of what has been required or may be required to make said annual payment of income provided by the will, should be treated as part of the net residuary estate and be paid over under clause eighteen thereof.”
It is stated in Manice v. Manice, 43 N. Y. 303, 385: “ Those who presumptively will be entitled to receive the rents and profits when the period of accumulation ends, are entitled to anticipate the event which is to terminate the accumulation and to take at once the rents and profits which are undisposed of or unlawfully directed to be accumulated.” The legatees named cannot be said to be presumptively entitled to take rents and profits to which under no circumstances will they at any time become entitled and when there remains as the next eventual estate only the residuary legatees.
It is held in Crerar v. Williams, 145 Ill. 625; 21 L. R. A., 454;
Gray, J., in Riker v. Cornwell, 113 N. Y. 115, 127, states the rule plainly, as follows: “ I think the doctrine is firmly established, by the reported cases and by the text-books, that where the residuary bequest is not circumscribed by clear expressions in the instrument and the title of the residuary legatee is not narrowed by special words of unmistakable import, he will take whatever may fall into the residue, whether by lapse, invalid dispositions or other accident.”
I am, therefore, of the opinion that the rents and profits we have been considering should be paid to the residuary legatees and devisees named in the 7th clause of the will, they being presumptively entitled to the next eventual estate.
The next question that I am asked to consider and determine is the proper disposition to be made of the rents and profits which were given by the terms of the will to Grace Tamagno, one of the six residuary legatees of income under the 4th clause of the will, share and share alike.
She died after the death of the testatrix. It appears from the briefs of the attorneys that at the time of the verification of the petition there was $1,514.28 of net income in the hands of the trustees (which would belong to Grace Tamagno, if living), received since October 25, 1921, the date of the death of Grace Tamagno. As the trust does not terminate until the death of both Anna C. Tamagno and Daniel B. Tamagno the estate of Grace Tamagno may have a very substantial interest in the income which may hereafter arise. The testatrix in disposing of her property and the rents and profits of her real estate clearly defines what interest the several legatees of the income were entitled to receive and she seems to discriminate between Anna C. Tamagno, Daniel B. Tamagno and the other residuary legatees. To Daniel B. Tamagno she directs the amounts of the rents and profits payable to him to be paid during his life and also the rents and profits payable to Anna C. Tamagno during her life. To the others named, including Grace Tamagno, she clearly directs that the rents and profits should be paid them during the continuance of the trust. She makes no provision for the payment to any other person of the rents and profits, in case of the death of the residuary legatees, which leads me to believe that she intended to create a vested remainder in Grace Tamagno during the fife of the trust. I have heretofore referred to the intention of the testatrix in disposing of her property.
In Cammann v. Bailey, 210 N. Y. 19, the testator by his will, after making certain bequests, gave a part of his estate in trust to the trustees for the life of his wife and directed that a portion of the income should be paid to the wife, a portion to a son, and the residue of such income to other children. On the death of the wife the trustees were directed to pay to the children in equal shares the income until such children reached thirty years of age and as each reached that age the share of the principal was directed to be paid to him. One of the sons who was entitled to receive income died before the widow of the testator and before reaching thirty years of age. Two questions were certified to the Court of Appeals, (1) as to whether the son took a vested interest in the income and if so whether such interest passed under the son’s will, and (2) as to whether the son took a vested interest in the share of the principal estate. Both questions were answered in the affirmative.
In Morgan v. Williams, 66 How. Pr. 139, it was held that upon the happening of the death of one of the beneficiaries to whom a share of the income was, by the terms of the will, made payable during the fife of the trust as provided by the 10th clause of the will, the share of the person so dying should thereafter be paid to the legal representatives of the person so dying during the duration of the trust.
To the same effect is Montanye v. Montanye, 29 App. Div. 377.
The gift of income to Grace Tamagno during the continuance of the trust cannot be cut down except by language showing as clear an intention to do so as the prior part does to make an absolute gift of income for the period stated. Matter of Hoffman, 140 App. Div. 121.
The attorney for the residuary legatees relies upon the case of People’s Trust Co. v. Flynn, 44 Misc. Rep. 6, and in considering
In the case of Young v. Barker, 141 App. Div. 801, it is held that George Barker had a vested remainder in one-third of the income as tenant in common with his brother and sister, and hence his share thereof did not go to the survivors of them, and that the accumulations must be disposed of under section 63 of the Real Property Law. The court further say (p. 807): “ We have seen that George Barker took a vested estate at the death of the testator, and that such estate was alienable and devisable. As he left a will, I think that such estate passed thereunder to his executrix, and that it is she who is entitled to the next eventual estate for the purposes declared by the testator.”
Decreed accordingly.