135 Misc. 413 | N.Y. Sur. Ct. | 1929
The trustee is accounting in this proceeding for the trust created under the will of the testator for the benefit of his son, Clarence D. Levey. A question has arisen as to the distribution of the remainder of this trust fund. The disposition thereof requires a construction of the will to determine the nature of the remainder.
The testator died in October, 1894, leaving him surviving his widow, Anne E. Levey, and four sons, to wit, Edgar J. Levey, Frederick H. Levey, Clarence D. Levey and Augustus A. Levey. He devised his residuary estate to his executors in trust to pay the net income therefrom to his wife during her lifetime, and after her death to divide the principal into four equal shares or portions. As to the third one-fourth share or portion thereof he provided as follows: “ I give, devise and bequeath the same unto my said Executors in trust during the life of my son Clarence D. Levey, to pay over unto him the net income arising therefrom, and at his death to pay the principal of said third one-fourth share or portion unto the children of said Clarence D. Levey, the issue of any deceased child to take the parent’s share; and should my said son Clarence D. Levey die leaving no children nor the issue of any deceased children, then to pay the principal of said third one-fourth share or portion to and among my other sons, the issue of any deceased son to take the parent’s share.”
The four sons named all survived his widow, who died on January 8, 1911. Thereafter Edgar died on April 26, 1912, testate, but without issue. Augustus died on January 20, 1914, testate, leaving him surviving two children, Harry H. Hart and Vivien H. Mooney, and no issue of any deceased children. Mrs. Mooney, however, died, testate, without issue, on May 15, 1923. Frederick died, testate, on August 5, 1927, leaving him surviving two children, Charles B. Levy and Margaret B. Levy, and no issue of any deceased children. Clarence died, testate, on or about March 31, 1929, without issue, sole survivor of said four brothers.
Three theories of construction have been urged by the respective parties appearing in this proceeding: (1) On behalf of the executors under the will of Augustus and also under the will of Edgar and on behalf of Amelia 0. Harrison, the widow of Edgar, it is urged
I hold that the testator clearly intended that vesting of the remainder be postponed until the death of Clarence. The latter’s death was the time fixed for the division and distribution of such remainder. The testator’s primary purpose was to confine the corpus of the remainder to the children of his son Clarence or to the issue of any deceased children. Only upon his death was it ascertainable whether Clarence left issue or, if he did, who they might be. Vesting of the remainder, on the other hand, in the " other sons ” of the testator or in the event of their death in their issue depended upon the death of Clarence without issue, and such vesting was postponed pending the happening of such contingency. The exact language of the testator’s will was “ and should my said son Clarence D. Levey die leaving no children nor the issue of any deceased children, then to pay the principal of said third one-fourth share or portion to and among my other sons, the issue of any deceased son to take the parent’s share.” This provision makes it clear that the testator intended to limit the alternative gift to his sons or the issue of any deceased sons to those sons or issue of any deceased
In Matter of Baer (147 N. Y. 348, at p. 353) the court said: “ Where final division and distribution is to be made among a class the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made. (Bisson v. W. S. R. R. Co., 143 N. Y. 125; Goebel v. Wolf, 113 N. Y. 405-411; Teed v. Morton, 60 N. Y. 506; In re Smith, 131 N. Y. 239, 247).”
Many authorities may be cited for the conclusion reached by me but perhaps the leading cases most in point are N. Y. Life Insurance & Trust Co. v. Winthrop (237 N. Y. 93); Matter of Crane (164 id. 71); Clark v. Cammann (160 id. 315) and the recent case of Matter of Einstein (Foley, S., 113 Misc. 105). The decree should, therefore, direct payment of the fund, one-half thereof to Harry H. Hart, the only surviving child of Augustus A. Levey, and one-fourth each to Charles B. Levey and Margaret B. Levey, the surviving children of Frederick B. Levey.
Submit decree construing the will, settling the account and directing distribution accordingly.