3 N.Y.S. 137 | N.Y. Sur. Ct. | 1888
In order to determine what disposition shall be made of funds-in the hands of the administrator, and to properly settle and allow his account, it becomes necessary to construe the will of the testator, which, under such-circumstances, falls within the jurisdiction of this court. Purdy v. Hayt, 92 N. Y. 446. The testator gave both his real estate and personal property by the same clauses of the will. He first gives the use of all his property to'his-wife during her life, with directions to his executors, if by reason of sickness, infirmity, or accident the interest of his estate shall be insufficient for her comfortable support and maintenance, to use so much of the principal as may be necessary for that purpose; and also provides that, should his daughter Ell n have need of it, she shall share with his wife in the use of his estate.. After the death of his wife, he gives “all the use of my remaining estate- * * * to my daughter Ellen E. Sanborn, and to Josiah Sanborn, her husband, during their life-time, respectively;” and, “third, after the decease of my daughter and her husband, I bequeath all the residue of my estate to the Rochester City Orphan Asylum.” It appears in evidence that there is no-such institution as the Rochester City Orphan Asylum, but that the institution evidently meant was the Rochester Orphan Asylum, and they are entitled, to any legacy that they would have been entitled to if properly named. Board v. Scovell, 3 Dem. Sur. 516. The will was executed within two months of.' the death of the testator, but the Rochester Orphan Asylum having been incorporated prior to chapter 319, Laws 1848, (by act passed March 23, 1838,)» that act does not affect this corporation, and the gift is not void on that account. Kerr v. Dougherty, 79 N. Y. 327; Stephenson v. Short, 92 N. Y. 433.
The act of 1860, however, does' apply, (chapter 360,) and would render adevise or bequest to this society valid, only as to one-half of thetestator’s estate, as he died leaving a wife and child him surviving. The remaining questions-are to be considered for the purpose of determining whether the gift of one-half to the Rochester Orphan Asylum is valid. It is claimed that the will is. void, as creating a trust, and suspending the power of alienation of the real! estate, and the absolute ownership of the personal property, beyond the statutory limit of two lives in being. The intent of the testator was evidently to-give a life-estate to his wife, then an estate to his daughter and her husband, for life, with cross-remainders; and such would be the effect of the will, unless the relation of husband and wife existing creates a different interest.. Purdy v. Hayt, 92 N. Y. 446, 452. In the last case, the testator gave his real estate to his two sisters “during their respective lives,” and was held to-create an estate as tenants in common, with cross-remainders. The power of alienation is not suspended at all as to the real estate, by the will, as all the beneficiaries are in existence, and there is no contingent estate that would in
There are only two ways in which the power of alienation can be suspended, viz.: “By an express trust, or power in trust, of such a character that the land cannot be alienated during its continuance; or by a contingent limitation.” Per B, apallo, J., in Radley v. Kuhn, 97 N. Y. 34; Everitt v. Everitt, 29 N. Y. 71. The contingent limitation does not exist, nor do I think that such a trust is created by the will. It has always been held, and is now the’ rule, that courts should seek to sustain the expressed will of the testator, where they can do so, and so far as it can be done without contravening the-express provisions of the statutes regulating testamentary dispositions. Neither will a trust be raised by implication, where the only effect of such a construction would be to raise it for the purpose of destroying it as soon as-created, or of invalidating the instrument by which it is created. Smith v. Edwards, 88 N. Y. 102. The only portions of the will that could possibly be construed as tending to create a trust are the provisions authorizing the executors to apply a portion of the principal to the use of his wife in certain contingencies; which might seem to imply an intention that they should have the-possession of the corpus of the estate for that purpose. But in that event, after the death of his wife, no necessity could arise for holding that the title-was in the executors. They are not named as trustees, nor is any gift or devise made to them either as trustees or executors. In fact, no power in reference to the real estate seems to be conferred on tbe executors,, unless a power to sell the same for the benefit of the widow, should it become necessary to do-so in her life-time, for her support, could be implied. This would, at all events, terminate at her death; and therefore the property.seems, without any contingency, to be absolutely vested in the beneficiaries, without any estate in the executors, and without any power conferred upon them to sell, lease, or manage the real estate. If the personal property is retained for the-purpose of collecting and paying over the income, it does not necessarily require the creation of a trust to do this. Smith v. Edwards, supra. Nor does-it appear certain that the executors were to hold the personal property during the life-time of the beneficiaries, should they seek to obtain possession of it, upon tendering a proper bond. Livingston v. Murray, 68 N. Y. 485. I cannot see that the will conveys any power or creates any trust in regard to the management of the real estate. There is no express direction conferring any such power, nor does there appear to be any provision in the will from which such an intent could be inferred; and I am therefore of the opinion that the administrator, in managing the real estate, has acted, and will, if he hereafter continues to act, do so, not by virtue of any power given him by the will,, but as an agent for the parties interested, under an agreement with them, either expressed or implied.
While a decision upon this hearing may only incidentally affect the real estate, it is nevertheless proper to discuss the rules and restrictions relating to-its disposition and ownership, as it lias been held by the court of appeals that the absolute ownership of personal property is only suspended in the same manner as is the power of alienation of real estate. Gilman v. Reddington,24 N. Y. 9-18; Bliven v. Seymour, 88 N. Y. 469-478. If this question had not been so settled, my own views would be in accordance with those expressed by the court in Converse v. Kellogg, 7 Barb. 596. Section 1, 1 Rev. St. p. 773, (3 Rev. St. 7th Ed. 2256,) provides that the absolute ownership of personal property shall not be suspended for more than two lives in being, etc.; and section 2 provides as follows: “In all other repeats, limitations of future or contingent interests of personal property shall be subject to the rules prescribed in the first chapter of this act, in relation to future estates in land.” These rules provide that, where a remainder is limited on more than two life-
This brings us to the consideration of the share of the estate taken by the asylum, or, rather, to the question, what constitutes one-half of the estate at the time of the testator’s death, within the meaning of tiie statute. The rule for ascertaining this is laid down in Hollis V. Seminary, 95 N. Y. 166, and must be followed in this case. The time must be of the death of the testator. Harris v. Society, 2 Abb. Dec. 316. To determine the amount of his estate in accordance with these rules, the widow’s dower in the real estate should first be ascertained and deducted. Chamberlain v. Chamberlain, 43 N. Y. 424. This should ordinarily be ascertained on the principle of life-annuities. This method is resorted to where the time is not actually known, but in this, case it appears that the widow lived 6.833 years: so we may adopt that as the number of years’ purchase of her annual dower interest. The value of an estate need not be determined by an annuity table in all instances, but may be ascertained by such other means as are in any case available. Hollis v. Seminary, 95 N. Y. 179. The value of the real estate is conceded to have been, at the death of the testator, $1,300. One-third of this, or $433.33, at 5 per cent., for 6.833 years, is equal to $148.05. The whole property was stipulated to have been worth at the testator’s death, and over and above his debts, $6,674.54. Deduct the dower, and it leaves $6,526.49. If my views are-correct as to the manner in which the daughter and her husband hold, they are each practically entitled to the use of one-half of this amount, or, computed at 5 per cent., an annuity of $163.16. Mrs. Sanborn, at the death of the testator, was 41 years of age; and by the Northampton table her annuity was worth 11.695 years’ purchase, or $1,908.16. Mr. Sanborn’s age was 58, and his annuity was worth 8.801 years’ purchase, or $1,436.97. The present worth of all the legacies was the present worth of the life-estates and remainders making up the sum of $6,526.49. The gift of the whole of this, payable one-half at the death of Mrs. Sanborn, and one-half at the death of Mr. Sanborn, is not equal to the two life-estates, and therefore is not in excess of the amount which the testator could give to a charitable society. The words of the will, giving the remainder after the death of the life-tenant, did not postpone its vesting. Baker v. Woods, 1 Sandf. Ch. 131; In re Mahan, 95 N. Y. 372. The administrator is entitled to claim his full commissions on income which has annually been ascertained and paid over. Hancox v. Meeker, 95 N. Y. 528. Where an annual ascertainment and paying over of income has not actually taken place, he is entitled to only one set of commissions for receiving and paying out, to be computed on the aggregate amount of principal and income; reinvestments not being included in this aggregate. Betts v. Betts, 4 Abb. N. C. 437.