182 Misc. 84 | N.Y. Sur. Ct. | 1943
On this trustees’ accounting proceeding petitioners request: (1) a construction of the will and (2) a determination as to whether there has been a valid exercise of the power of appointment granted to Anna H. Delavan, deceased,, by paragraph “ Seventh ” thereof. The requested construction requires a determination as to the persons in whom one half of a remainder interest vested upon the death of Anna H. Delavan and who are designated as the “ residuary legatees.” The provisions of the will, as modified by a codicil thereto, insofar as pertinent, are as follows:
“ Eighth: I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of every nature and description and wherever situated of which I shall die seized or possessed, or to which I shall be entitled at the time of my decease or which is subject to my disposal by will unto my trustees hereinafter named, or such of them as shall qualify, or the survivor or successors of them, in trust as follows:
“ To collect'and receive the income, rents and profits of such residuary estate and, after deducting the . reasonable costs and expenses of the trust, to pay over the whole net balance of such income, rents and profits to my sister, Ellen E. Langdon, during the term of her life. ’ ’
There follows in subdivision (a) of paragraph “ Ninth ”' a direction that upon the death of the decedent’s said sister, Ellen E. Langdon, $200,000 of the residuary trust be continued in trust and the income be paid to a nephew, Andrew Langdon during his life, with remainder over to his children him surviving, and to the issue of any child predeceasing him. In the event that her residuary estate proved to be insufficient to pay certain other bequests contained in paragraph “ Ninth ”, the testatrix directed that the aforementioned trust fund of $200,000 be reduced sufficiently to pay such bequests, provisions for which are made in subdivisions (b) to (h) of the same paragraph as follows: $50,000 to a brother William Chauncey Langdon; $30,000
It further appears from the petition and other records on file in this court that Anna H. Delavan, the life beneficiary named in the “ Seventh ” paragraph of decedent’s will, survived the testatrix and thereafter died on or about September 14, 1942, a resident of the State of Pennsylvania, leaving a last will and testament duly probated in that State. Harriette Young Warner, one of the aforementioned legatees, predeceased Anna H. Delavan, and at the time of death of Anna H. Delavan, Andrew Langdon, the life beneficiary named in subdivision (a) of paragraph “ Ninth ” was alive as were his two children, John Le Droit Langdon and Ellen Elizabeth Langdon.
A residuary legatee is “ one who takes what remains or a portion of what remains after satisfying all other gifts, charges, losses and expenses ” (Matter of Goggin, 43 Misc. 233, 237). An examination of the will shows that the testatrix failed to name any residuary legatees in the strict sense of the words and a narrow construction would result in intestacy as to the remainder interest presently distributable. One of the canons of construction is that the court should endeavor wherever possible to avoid intestacy (Matter of Hayes, 263 N. Y. 219, and cases cited). None of the parties has urged that the will be construed in that manner and the court is of the opinion that the language employed, considered in the light of the other dispositive provisions of the will, is susceptible of a meaning that will prevent intestacy. It is quite evident that the chief object of the testatrix’s bounty was her sister Ellen E. Langdon, the sole life beneficiary of the primary residuary trust. The trustees urge that the court should hold, therefore, that by the words “ residuary legatees ” the testatrix intended to desig
The American Birth Control League, Inc., one of the named remaindermen under the residuary trust, contends that it and the American Society for the Prevention of Cruelty to Animals are the only true residuary legatees and that consequently they share the fund “ equally ”. The court having eliminated the trustees as “ residuary legatees ” it follows that the testatrix failed to designate residuary legatees in the strict sense of the words; the only other persons named in paragraph " Ninth ”, excluding the children of Andrew Langdon, are remaindermen of the Ellen E. Langdon trust. That the respondent charities are given only a possible residue of the remainder is indicative of an intent to favor the individual remaindermen. Can it be said that these remaindermen whose rights are clearly thus subordinate to the primary or individual remaindermen should take under paragraph “ Seventh ” to the exclusion of the latter, whose rights are clearly preferred over the former by paragraph " Ninth ”? I think not. The charities are merely potential remaindermen, the payment of whose legacies is conditional upon the existence of “ any balance, if any ” after payment of all legacies of the named primary remaindermen. In my opinion the inclusion as residuary legatees of the so-called primary remaindermen to the exclusion of the secondary or potential remaindermen would achieve a result more in harmony with the
This conclusion is not in conflict with the decision of Surrogate Foley in Matter of Lydig (145 Misc. 321, affd. 238 App. Div. 830, affd. 263 N. Y. 600). There the pertinent portion of the will directed the executors to convert the residuary into money and, after deducting therefrom certain charges, “ to pay over the net proceeds of the same pro rata, in the same relative proportions, to those who may survive me and be entitled to receive legacies or bequests under the ' sixth ’ clause of this my Will, to whom I give and bequeath the same.” By the sixth paragraph of the will the testatrix made gifts of stated amounts of money nominatim to nineteen individuals and twenty-one charitable corporations and institutions. In holding that the words “ those who may survive me ” were capable of including the corporate legatees, the court stated at page 323: “ As commonly used,' in its strict sense, the word ‘ survive ’ applies to persons. In legal phraseology, however, it has been frequently employed in reference to the continued existence of corporations or institutions. Corporations may survive as well as individuals.”
An analysis of this decision, however, indicates that the dominant factor considered by the court in reaching its conclusion was that the inclusion of the named charitable corporations and institutions within the class was more in harmony with the general scheme of the will and the apparent desires of the decedent. This attitude is indicated by the following concluding sentence of the opinion: “It is inconceivable that she would exclude the charities from participating in a fund of almost $1,000,000, the amount of the residuum, when the scheme of her will so clearly indicates that the charities were by far the greater objects of her bounty.”
The court having here determined that the individual remaindermen and not the charities were intended to be the principal objects of decedent’s bounty, that definition of the word “ surviving ” must be adopted which will be in harmony with and carry out the apparent intent of the testatrix.
I therefore determine that the following persons named in paragraph “ Ninth ” of the will constitute the “ residuary lega
The remaining question involves a determination as to whether Anna H. Delavan duly executed the power of appointment conferred upon her by the “ Seventh ” paragraph of decedent’s will. The holographic will of the said Anna H. Delavan reads as follows:
May 20, 1935
“ This is to state that in case of my decease I leave and bequeath everything that I own in the world to my beloved Son Fred Delavan — This is to include all of my personal belongings, household goods, of every description, everything in my apartment or in storage — all money or monies in bank or due me or bequeathed me by Elizabeth Curtis Langdon due at the time of my decease — all property anywhere situated — which I am entitled to by law — or that is in litigation — I also direct that no change shall be made in Elizabeth Curtis Langdon’s Will regarding the terms of the legacy she left me — Her desire and directions expressed in Par 7 — of her Will regarding my son Frederick M. Delavan and his daughter Ursula are to be carried out to the letter.
Signed — Anna Hazelton Delavan 4801 Locust St.
G-lademore Court Philadelphia, Pa — ”
By section 18 of the Personal Property Law, it is provided as follows: “ Personal property embraced in a power to bequeath, passes by a will or testament purporting to pass all the personal property of the testator; unless the intent, that the will or testament shall not operate as an execution of the power, appears therein either expressly or by necessary implication.” In my opinion the will of Anna H. Delavan clearly indicates her intent not to exercise the power of appointment conferred upon her. I therefore determine that the other one half of the remainder of the trust for the said Anna H. Delavan passes under the provisions of paragraph “ Seventh ” of the will of Elizabeth Curtis Langdon.
Settle decree accordingly.