1 Connoly 259 | N.Y. Sur. Ct. | 1888
The formal requisites provided by the statute for the execution of a will have in this case been complied with by the testator. It is undisputed, and has been proven, that he possessed at the time of the execution of his will testamentary capacity. The validity, however, of the disposition of his personal estate, attempted to be made by the will, is questioned; and it is claimed that these dispositions, or the most important of them, are of such a character as to require that they should be declared void and inoperative.
The tenth clause, which is the main object of attack, directs, substantially, that the residuary estate shall, when his youngest child attains majority, be equally divided between his wife, if she remain his widow, and his children by her, and that one of such equal por
The testator at the time of his death left four children, who still survive. One of them is a child by a former marriage, and is an adult; the other three are minors, and are children by his second wife. She is now living. The point is made, with regard to the direction for the division of the residuary estate, that it was designed to so operate that in case any two of the minor children should die before attaining majority the division should be deferred until the third child who happened to survive them should reach majority, and that in the meantime the executors were, by the provisions of the will, required to hold and administer the estate -upon trusts which, if such provisions are valid, would render it, during their continuance, inalienable. The effect of this would be a suspension of the power of alienation for more than two lives in being at the death of the testator, and the consequent invalidity of the provision under consideration. Part 2, c. 4, tit. 4, § 1 (3 Rev. Stat., 8th ed., p. 2516), Manice v. Manice, 43 N. Y. 303.
I have no doubt whatever that it was the intention
The contention that the youngest child mentioned in the clause in question refers to such one of the testator’s minor children as shall live to first reach majority, and not solely to the youngest child living at the time of his death, is untenable. The child meant is undoubtedly the latter. The construction which adjudged cases have put upon provisions of similar character leaves no room for any other conclusion. They hold, besides, that the effect of such a provision is simply to prevent a division of the estate until the child shall attain the age of twenty-one years, or previously depart this life. Muller v. Struppman, 6 Abb. N. C. 350 ; Lang v. Ropke, 5 Sandf. 369 ; Burke v. Valentine, 52 Barb. 426 ; Gilman v. Reddington, 24 N. Y. 9 ; Van Cott v. Prentice, 104 N. Y. 56.
Any uncertainty that may be supposed to exist as to whether the child intended was the youngest living at the time of the execution of the will, or the child who was afterwards born, but was the youngest living at the time of the death of the testator, is at once
The meaning of the provision which immediately follows the one just considered is more difficult of solution. It declares: “ But should any child die leaving issue, such issue are to receive in equal shares such portion of the patent medicines above referred to, and of my residuary estate, as their parent would have
This would involve the notion that the share of each beneficiary of a trust would, upon the death of such beneficiary, go, in the case of a child, not to his issue, but to the surviving children and the issue of any child who then happened to be dead. Under this interpretation, in case of the death of a child leaving issue, the issue would be entirely excluded from participation in the share set apart for the parent, which would be distributed among the widow and surviving children of decedent-; and while the issue of the child first dying might eventually become entitled, upon the death of the other children, to a part of each of their shares the issue of the child last dying would be debarred entirely from any share in the funds in which their parent or the other children were interested. In the distribution required by this view, the issue of the second child dying could only become entitled to share in the principal of the trust appropriated for the last. In view of the strange results flowing from this con
The construction which would permit the surviving children of decedent to take the share of a deceased child only in the absence of issue of such child, would seem to reflect the intention of the testator, and I have previously indicated that I think it does. It is manifest from the language of this provision that the testator intended that the issue of a deceased child should take some portion of the residuary estate, including the interest in the patent medicines; but the precise share or portion is in some degree rendered uncertain by the language he has used to identify or describe it. I am satisfied that the “ portion ” which it was intended that the issue should take was that in which their parent was given a beneficial life interest, together with such part as he would be entitled to take in the share of the widow and in the shares of the other children dying without issue, in the event that he survived them. The language by -which the testator made the gift should, for the purpose of effectuating his intentj be so construed as to read as if the bequest was of the portion of the residuary estate whose principal or income the parent would have taken if, or while, living. Wells v. Wells, 88 N. Y. 330. This construction of the bequest is justified from what I deduce to be the intention of the testator from the general scope and purpose of his will, as well as from the plain import of the bequest itself, and the author
Either of the interpretations just considered, relieves the dispositions affected by it from any objection of unlawfully suspending the power of alienation.
A third interpretation is suggested. This would restrict the right of the survivors of the wife and children and the issue of the latter to take only in case of'the death of the wife or of a child who had survived the majority of the youngest child. This would not, in the view I have taken of the meaning of the language employed, involve any question as to the unlawful suspension of the power of alienation. It would, however, in event of any or all of the beneficiaries dying previously to the period stated, work an intestacy as to a part, or all of the estate, as the case might be, and thus defeat the manifest intent of the testator to prevent an intestacy, and to make complete disposition of his entire residuary estate.
Still another construction, to the effect that the testator intended, in any event, that the trust created for the benefit of a child should be continued after his death for the benefit of his issue, or, in the absence of such, for the surviving children, and thus effect an unlawful suspension of the power of alienation of the fund, finds no support whatever in the. language of the provision.
I have thus arrived at the conclusion that the dispositions which the testator has made of his personal estate by the tenth clause of his will are valid. By such dispositions, separate trusts were, upon his youngest child reaching majority, or, in case of his previously
The share of the wife, upon her death, would be distributable among such of the children as should survive her, and the issue then surviving of any of them who should be dead. In case of the death of the beneficiary before the arrival of the time designated for. setting up the trusts, those who would take the principal. of the share would become entitled to a vested interest in the same, with the right of possession or enjoyment postponed until death or majority of the youngest child. If the death of the beneficiary happened subsequently to the time just mentioned, his issue then living would take a vested interest, with an immediate right of enjoyment in the principal of the trust for the benefit of such beneficiary.
There can be no question that the bequest to the widow in the fourth clause is valid. She is given two thirds of the net income of the estate as long as she remains testator’s widow, but in no event is this bequest to extend beyond the time when the youngest child shall attain majority, or previously die. After this time, provision is made for her in the tenth clause, in case she remains unmarried. Should she re-marry,
The direction contained in the eighth clause for the continuance of the interest of the testator in the business therein mentioned, and the reception of the profits thereof until the youngest child should reach majority, and then the division between his wife and her children by him, is, so far as it makes provision for their retention for the purpose of division until the event specified, invalid. Such provision plainly contemplates an accumulation of profits in the mean time, which are not expressed or intended to be for the benefit of minors solely. To the extent that it provides for such accumulation the provision is therefore void. Part 2, c. 4, tit. 4, §§ 2, 3 ; 3 Rev. St. (8th ed.), p. 2516 ; Boynton v. Hoyt, 1 Den. 53 ; Lang v. Ropke, 5 Sandf. 365, 371 ; Pray v. Hegeman, 92 N. Y. 517 ; Kirkpatrick v. Johnson, 15 N. Y. 326. The invalidity of this direction for accumulation, while obviating the necessity for any consideration of the subject of the seeming incompatibility between the dispositions contained in the eighth and eleventh clauses of the will with respect to the accumulations in the event that the widow should re-marry, does not affect the validity of the provision for the ultimate incorporation in the residuary estate of the principal of the fund. The
The second clause of the codicil, taken in connection with the seventh clause of the will, makes provision for the payment out of the capital of the estate, under certain conditions, of a legacy of $30,000 to each of his sons upon their respectively reaching majority. The fifth clause of the codicil reads: “ I hereby alter the ages at which my sons are to receive each a capital sum of $30,000 from the principal of my estate, to twenty-one years, so as to make the date correspond with the time at which my residuary estate can be divided.” There is, no doubt, some ambiguity and indefiniteness in this language; yet I think' the testator’s meaning is easily discovered. He intended to change the time which he had previously fixed for receiving the respective legacies to the time which he had designated for the division of his residuary estate, that is, when his youngest child should reach the age of twenty-one years. That this was his purpose is obvious from his language altering the time, viz.: “ So as to make the date correspond with the time at which
The bequest of $30,000 for the benefit of the widow, contained in the third clause of the codicil, is in like manner made payable out of the capital of the estate when the youngest son shall reach majority, in the event of her remaining testator’s widow, and upon her death would, under the direction for its ultimate disposition, become part of the residuary estate. The