182 A.D. 180 | N.Y. App. Div. | 1918
Lead Opinion
In 1905 John Gibb died leaving an estate of some $3,000,000, in which his eleven children and their stepmother and testator’s widow, Sarah M. Gibb, were given interests. The children were concerned in making more ample provision than the will afforded the widow, to which the present testator, Arthur Gibb, contributed $10,000 yearly during the last several years of his life, in the form of interests in the business of Frederick Loeser & Co., in which his own fortune was largely invested. Arthur Gibb had no issue, but he had married the widow of his brother John Richmond Gibb, who had left her and her three children something over $400,000. Such widow and her children take the. present testator’s residuary estate, which amounts to $1,600,000 and comprised the bulk of his property. Out of property not cast in the residuary, Arthur Gibb made some provision for certain of his brothers and sisters, and also for a nephew and two nieces. He left him surviving only eight of his brothers and sisters,
I think that the decree of the Surrogate’s Court of Nassau county should be modified as to such interest, and as so modified affirmed, without costs."
Mills, J., concurred; Rich and Blackmar, JJ., concurred except on the question of interest, and as to that they voted to affirm; Putnam, J., concurred on the question of interest, and read for reversal on the question of the vesting of the principal.
Dissenting Opinion
The testamentary trustees held in trust $200,000 to pay the income to the stepmother, and upon her decease then to pay over the principal, without any words of direct bequest
■ Lord Kenyon placed a different construction where the court has to gather the intention from informal words in a will, from where, as in the case before him, correct and technical expressions were used throughout. (Denn v. Bagshaw, 6 Durn. & East, 512, 516.)
The construction that this gift had not vested is supported by the contrasted bequest outright to these same brothers of the testator’s bonds and stock in the firm of Mills & Gibb, which, in the form of exchanged securities, they took in their lifetime. A will is to be construed by the law at the testator’s death. Nevertheless, Chief Justice Parker said in 1717: “ the construction of the will must be according to the import and meaning of the words at the time of making of the will.” (Goodright v. Wright, 1 P. Wms. 396, 400.) It may not be wholly controlled by a prior decision that had influenced
I, therefore, would modify the surrogate’s decree, ■ and direct that the trustees treat and dispose of this $200,000 as part of the residuary fund under clause 12 of the will.
Decree of the Surrogate’s Court of Nassau county modified as to the interest that had accrued at the death of Sarah M. Gibb, which should be paid to her representatives; and as so modified affirmed, without costs.