174 Misc. 933 | N.Y. Sur. Ct. | 1940
The determination of several preliminary questions of construction of the will of the testator is sought in this accounting proceeding.
By item Fifth of his will the testator bequeathed to his wife for life his entire residuary estate. He then provided in item Sixth as follows:
“ Upon the death of my said wife, or upon my death if I survive her, then I give and bequeath all of my said residuary estate (which I have given and bequeathed to my wife for life) to the Brooklyn Trust Company, of the Borough of Brooklyn, in the City of New York, as my executor and trustee, for the following uses and purposes:
“(1) To pay to my niece, Esther Foster, of Utica, New York, wife of my nephew, Gerard S. Foster, the sum of Ten Thousand Dollars, to be hers absolutely and forever.”
Under subdivision (2) of item Sixth he bequeathed a legacy which, under its provisions, lapsed because of the divorce of the legatee before the death of the life tenant. Under subdivisions (3), (4) and (5) he created trusts for certain of his relatives, and under subdivision (6) directed his executors and trustees to purchase an annuity for the life of one Katharine Baldwin.
(1) The question is raised as to whether the gift of the remainder to testator’s niece, Esther Foster, under subdivision (1) of item Sixth, above quoted, is vested or contingent. I hold that the remainder is clearly vested. There is no uncertainty as to the amount and the person intended as the beneficiary of the legacy. The gift was to the legatee nominatim. Survivorship at the termination of the life estate for the widow was not a condition of the gift. Had the testator intended otherwise, he would have so indicated in no unequivocal language, as he did under the provisions of subdivisions (3), (4), (5) and (6) of item Sixth, The absence of
(2) Since the residuary estate is insufficient to pay the legacies under subdivisions (1), (3), (4), (5) and (6) of item Sixth in full, the amount of the lapsed legacy to Bertha Foster, under subdivision (2), must first be applied to their satisfaction before any portion
The testator obviously intended that no payment should be made to the corporate legatees under subdivision (7) until the general legacies of specific amounts of the residuary estate shall have first been paid in full. (Matter of Zollikoffer, 157 Misc. 837; Matter of Jones, 75 id. 47.) In effect, these legacies are general legacies, which are payable after the death of the testator’s widow, and the corporations named in subdivision (7) of item Sixth of the will are the ultimate residuary legatees, to whom nothing passes until the general legacies have been fully satisfied. (Matter of Cameron, 278 N. Y. 352; Matter of Title Guarantee & Trust Co., 195 id. 339; Matter of Brundage, 101 Misc. 528; affd., sub nom. Matter of Farmers’ Loan & Trust Co., 186 App. Div. 722; affd. and modfd., 226 N. Y. 691.) While the general rule is that where a legacy which has failed and lapsed, was itself a disposition of part of the residue, it will go as in case of intestacy (Wright v. Wright, 225 N. Y. 329), the rule is not applicable where the testator’s intent is clearly expressed to the contrary.
(3) The sum to be applied to the purchase of the annuity for Katharine Baldwin, under subdivision (6) of item Sixth of the will, may be paid to her absolutely, pursuant to her election to receive the capital sum available for that purpose in lieu of the annuity. (Matter of Cole, 219 N. Y. 435; Matter of Oakley, 142 Misc. 1; Reid v. Brown, 54 id. 481.)
Proceed in accordance with the stipulation filed and approved by the surrogate on June 14, 1940, authorizing the filing of objections to the account within twenty days from the date of the determination of the questions of construction involved herein or within twenty days after the filing of any amendment to the account.