113 Misc. 10 | N.Y. Sur. Ct. | 1920
This is a proceeding under section 2615 of the Code of Civil Procedure for the construction of the will of the decedent. The will was admitted to probate December 24, 1918. The testator was survived by his widow, Clara C. Erickson, three daughters, Adelaide, Muriel and Isabel, the issue of testator’s first marriage, a son, William Thome Erickson, 2d, the issue of testator’s marriage with the petitioner, Clara C. Erickson, and a stepdaughter, Ethel Griffiths, a child of tbe petitioner by a former marriage. All of the above named children are infants, and, together with the petitioner, are all of the beneficiaries
The first question is the disposition of the corpus of the trust created for the benefit of the widow. She is entitled to receive the income from a fund of $100,000, to be invested by the trustees in Liberty bonds or other similar investments as directed by the will. As the trust is clearly limited by her life, we have a ease where a trust is created for a life, but with no express disposition of the remainder. If there were no general residuary clause, no doubt the entire fund would vest in the widow, upon the principle that a bequest of income generally with no mention of the remainder constitutes an absolute bequest. But this rule applies only to a case where the will or instrument creating the trust is silent as to its duration and where upon examination of the purposes, objects and necessities of the trust it is found that the intention was to vest absolute ownership. Locke v. Farmers’ Loan & Trust Co., 140 N. Y. 135; Hatch v. Bassett, 52 id. 359; Matter of Dibble, 76 Misc. Rep. 413. In Matter of Farmer, 99 Misc. Rep. 437, 443, the residuary clause expressly excluded the twenty-nine shares of stock in question.
I am of the opinion that the provision for Ethel Griffiths in the third paragraph constitutes an absolute bequest; the principal and income to be applied to her use, and the enjoyment of principal to be postponed as directed in the will. Though the will commences with a statement that the testator gives all his property in trust, the language of the third paragraph is sufficiently clear and specific to indicate an intention to vest in the stepdaughter the entire principal and income with enjoyment of principal deferred. In no other part of the will (except the general gift to the trustees) did the testator use such words of direct gift as “ I give, devise and bequeath to my stepdaughter Ethel Griffiths the sum of fifteen thousand ($15,000) dollars * * . Whatever his intention in the bequest of all his estate to his trustees in the first paragraph, he used words that were clear and unambiguous in his bequest to Ethel Griffiths in the third paragraph. Though the residuary clause is broad enough to include property unbequeathed in other portions of the will, the fact that the testator provided for gifts over in some parts of the will and did not do so in the
The 4th paragraph of the will is as follows:
“ Fourth: I direct that thirty-five (35%) per cent, of the income of the estate be paid to Minnie F. Hirsch, of the City of New York, as trustee, and I direct that said sum be by her divided into three (3) equal parts, and I direct that one of said equal parts be by said Minnie F. Hirsch applied for the education, support and maintenance of each one of my three daughters, Adelaide, Muriel and Isabel, share and share alike, so long as she considers they are continuing to live under proper surroundings and leading proper lives. As each one of the three girls marries-, she is to receive an outright payment in cash of a sum of money equal to ten per cent, of the principal represented by one-third of the thirty-five per cent, income. They are not to know anything about this inheritance or their interest in my estate until they are actually married. In the event that either of the girls dies before receiving her share as above, the survivor or survivors of the three girls shall receive the benefit of the interest that would have gone to the deceased girl. If either of the three girls dies leaving children surviving, such children are to divide the income of the share that the mother was getting. If Minnie F. Hirsch dies before she enters upon or completes this trust, I request my valued friend Anthony J. De May to undertake this trust. If he cannot or will not do so or does not complete it, I direct that my executor and trustee hereinafter named enter upon and complete it.”
A careful study of the above paragraph in conjunc
The trust for the benefit of the son contained in the 6th and 7th paragraphs of the will is valid. Under the residuary clause the son takes all property not theretofore expressly bequeathed, together with all bequests that fail because of illegality. Matter of Colegrove, supra; Lamb v. Lamb, 131 N. Y. 227. The trust for the son will consist of that portion of the principal of the estate which is represented by twenty-five per cent of the income. This provision for capitalizing the income is similar to that for the three daughters in the 4th paragraph. The income is to be
There is no present need of a construction of paragraphs eighth, ninth and tenth of the will. It may never be necessary to construe these portions of the will, for the contingencies mentioned therein may never arise. These paragraphs do not affect the validity of the other portions of the will. The application for their construction is therefore denied as premature. Matter of Hance, N. Y. L. J., Feb. 6, 1920; affd., 192 App. Div. 904. In construing this will the extrinsic evidence taken has been disregarded.
Decreed accordingly.