115 Misc. 724 | N.Y. Sur. Ct. | 1921
On this accounting a question of construction of the will arises. The testator died April
. 1. That the gift of the remainder to Hoffman Kis-
sam Reynolds vested in him in his lifetime and passed to his next of kin.
2. That the testator failed to provide for the present situation, and thereby died intestate as to this remainder by reason of the fact that the life tenant died without issue, or that Hoffman Kissam Reynolds died without issue after he 'became twenty-one years of age. Under this theory the reversion vested in testator’s next of kin.
3. The remainder passed per stirpes under paragraph 10 to the grandchildren of the testator living at the death of Lucy E. Reynolds, since she died without issue.
The first construction cannot be adopted. The gift of the remainder is -to the children of the life tenant- or the issue of any deceased child “ living at the time of the death of my said daughter.” It is, therefore, clearly a gift to a class, with a direction for the distribution to the members surviving Mrs. Reynolds. Matter of Kimberly, 150 N. Y. 90; Matter of King, 200 id. 189. The remainder interests were, therefore, contingent and not vested. Matter of Buechner, 226 N. Y. 440; Schwartz v. Rehfuss, 129 App. Div. 630; affd., 198 N. Y. 585; Matter of Baer, 147 id. 348;
Neither can the second interpretation be sustained. The law favors testacy rather than intestacy. The testator is presumed to have intended to dispose of all his property, and an interpretation which results in partial intestacy will not be favored. Clark v. Cammann, 160 N. Y. 315, 324. “ There is one rule of construction which, to my mind is a golden rule, viz., that when a testator has executed a will in solemn form you must assume that he did not intend to make it a solemn farce,— that he did not intend to die intestate when he has gone through the form of making a will.” Matter of Harrison, 30 Ch. D., 390, 393, 394; Beal’s Cardinal Rules of Legal Interpretation, 514; Jarman Wills, (6th ed.) 991. The general scheme of the will shows that he attempted to provide for a complete distribution of his estate.
I therefore hold that the third construction is the proper one; that the remainder must be construed as a contingent gift to a class, and that the grandchildren living at the death of the life tenant constitute the members thereof. The testator definitely and repeatedly fixed this event as the date of determination. Construction must be rendered as of the time of the taking and vesting fixed in the will. Metropolitan Trust Co. v. Krans, 186 App. Div. 368, 373. The first two clauses of paragraph 10 must be disregarded, as they add nothing to, the provisions already made for the issue of a deceased grandchild in paragraph 7. The language in paragraph 10, as to the gift over of the share which the children of Mrs. Reynolds would have been entitled to if they attained the age of twénty-one years, is meaningless, because there is no prior-reference to such share. This language must therefore yield to his unambiguous declaration that only issue living at the death of the life tenant were entitled to take. The last clause of paragraph 10
The fund therefore should be divided into five equal shares corresponding to the number of the life tenant’s brothers and sisters, and distribution among the grandchildren should be made per stirpes as directed by the will.
Decreed accordingly.