193 Misc. 151 | N.Y. Sur. Ct. | 1948
This is a proceeding for the construction of the will. The testator died in 1916. Under paragraph eighth he created a trust for two nieces, Lottie S. and Annie R. Weaver, with income payable to them during their respective lives. Upon the death of the survivor the principal is directed to be divided among the issue of the nieces. The testator then provided: “ In the event of the death of both of my said nieces, Lottie S. and Annie R. Weaver, leaving no issue surviving to either of them, then I direct my executors and trustees to divide said principal fund equally among the three children of my deceased brother James, namely: Emilie L. Moore, Louise S. Austin and Lambert Suydam, issue of any deceased child to take parent’s share.”
Paragraph “ Ninth ” provides: “ All the rest, residue and remainder of my estate both real and personal including lapsed legacies, I give to the three children of my deceased brother James, share and share alike, namely: Emilie L. Moore, Louise S. Austin and Lambert Suydam, issue of any deceased child to take parent’s share.”
The gift of the remainder was to the children of the deceased brother, James, nomination. There was no uncertainty as to the persons intended. It was not a gift to a class (Matter of King, 200 N. Y. 189; Matter of Russell, 168 N. Y. 169; Herzog v. Title Guar. Trust Co., 177 N. Y. 86; Staples v. Mead, 152 App. Div. 745; Matter of Steinhauser, 186 Misc. 154; Matter of Clark, 120 Misc. 191; Matter of Baumiller, 155 Misc. 815). The sole contingency upon which the alternative gift of the remainder to the named individuals was to take effect was the death of the life tenants without issue. Survivorship to the termination of the trust was not a condition upon which the remainder to them was limited. The gift over to the issue of the named remaindermen operated only as a divesture clause as to a remainderman who died leaving issue. The provision for the substitution of the issue of any remainderman who died leaving issue did not affect the vesting of the interest in such remainder-man (Matter of Watson, supra; Matter of Schaefer, supra).
The similarity between the language of the present will and that in Matter of Watson and Matter of Schaefer (supra) is striking. In each of the latter cases the remainders were held to be vested subject to being divested by contingencies which did not occur.
The intention to vest the remainder in the three-named remaindermen is further emphasized by the provisions of paragraph ninth of the will which gave them vested interests as of the date of testator’s death in the entire residuary estate.
It has been urged here that the remainders are contingent because of the language of paragraph eighth which directs that the trustees “ divide ” the remainder upon the termination of
Proceed accordingly.