94 N.Y.S. 588 | N.Y. Sur. Ct. | 1905
In this proceeding, Frank L. Stocum has expressly put in issue before the surrogate the construction of the will of said testator so far as it affects the disposition of his personal property. Testator was a resident of the state at the time the will and codicil were made and at the time of his death, and the said will and codicil were executed within the state, and under section 2624, Code Civ. Proc., the surrogate has jurisdiction and power to determine the question thus put in issue upon rendering a decree proving and probating the said will. It is not claimed that the third clause of the will does not create a valid trust, and I decide that the trust mentioned in the said clause is valid, and vests the title of the personal property therein mentioned, after the payment of the expenses of administration, funeral expenses, and debts, in the executor in' trust, and that title remains in the said executor in trust during the natural lifetime of Ruby Stocum, and that the title to the remainder of the said personal property will not vest in the persons or any of the persons mentioned in subdivision 4 of the said will until the death of the said Ruby Stocum. In holding that the title does not vest until then I follow Bisson et al. v. West Shore R. R. Co., 143 N. Y. 125, 38 N. E. 104; Vincent et al. v. Newhouse et al., 83 N. Y. 505. I further decide by clause 4 of the said will the testator, in mentioning surviving grandchildren of his sons John L. Stocum, James D. Stocum, and of his daughter Catherine Chapman, meant not their grandchildren, but their children, being .his grandchildren, and that in the codicil to his said last will, where he again mentioned
I also decide that of the persons mentioned in clause 4 of the said will only those surviving at the date of the death of Ruby Stocum take under said clause, and those who may die before the date of her death get nothing. The said personal property mentioned in said trust vests at the date of the death of Ruby Stocum in only those surviving, who are mentioned in said clause 4. In deciding thus I follow Vincent et al. v. Newhouse et al., supra; Bisson et al. v. West Shore R. R. Co., supra. I further decide that those mentioned in said clause 4 who shall be the survivors of the said Ruby Stocum will not take the said personal property per capita, but per stirpes—that is, Frank L. Stocum, if living, one share; the children of James D. Stocum living another share, equally between them; the children of John L. Stocum then living another share, equally between them; and the children of Catherine Chapman another share, equally between them. In deciding thus I follow Ferrer et al. v. Pyne et al., 81 N. Y. 282; Vincent et al. v. Newhouse et al., 83 N. Y. 505; Clark v. Lynch, 46 Barb. 68.
I also decide that where the testator in his codicil used the words “surviving grandchildren of my sons. John L. Stocum, James D. Stocum, and my daughter Catherine1 Chapman, share and share alike,” he meant the same as I have decided that the said words meant in clause 4 of the said will.
I also decide that the clause in the codicil which attempts to revoke the second subdivision and the fourth subdivision of the said will so far as it bequeaths personal property to Frank L. Stocum, is not void upon its face, but that if hereafter it shall appear that if the said Frank L. Stocum had a valid claim existing against the testator, then under Case of Vandevort, 17 N. Y. Supp. 316, and 62 Hun, 612, that portion of the said codicil will be void. I decide that the personal estate mentioned in the fourth clause of the said will did not vest in Frank L. Stocum, absolutely or otherwise, at the death of the testator. •
I find and'decide that the said will and codicil were duly executed: that the testator at the time of executing the same was in all respects competent to make a will, and not under any restraint; and I direct a decree to be máde and entered admitting the said will and codicil to probate as a will valid to pass personal and real property, and considering the said will and codicil in accordance with this decision.
This proceeding held open for the making and entry of such decree, and for the granting of costs and allowances, and the question of costs and allowances reserved to be heard by the surrogate on the application of either party on at least two days’ notice to the other.