142 Misc. 697 | N.Y. Sur. Ct. | 1931
The construction of the 7th paragraph of testator’s will is sought. The said paragraph is as follows:
“ Seventh. I give and bequeath to my executor hereinafter named the sum of One Thousand Dollars ($1000.00) in trust, however, for the following purposes, viz: To invest the same and keep the same invested in some good interest bearing security or securities, for and during the life of the present wife of Milton P. Reese, son • of Evelin P. Reese, and upon the death of the said wife of the said Milton P. Reese, to pay over to the said Milton P. Reese, the said sum of One Thousand Dollars ($1000.00) with all accumulations of interest thereon, and in the event of the death of the said Milton P. Reese prior to the death of his said wife, then said sum of One thousand dollars ($1000.00) together with all accumulations of interest thereon to be divided between The House of the Good Samaritan of Watertown, New York, and The Jefferson County*698 Orphan Asylum of Watertown, New York, equally share and share alike.”
The Northern New York Trust Company was named as executor and trustee, qualified and has been and is acting as such. Milton P. Reese died December 1, 1930, and Rose B. Reese, referred to in the 7th paragraph of the will as “ the present wife of Milton P. Reese,” died January 9, 1931. No part of the income or principal of the trust fund has been paid out and the trustee now has on hand in the trust fund the $1,000 principal and $940.35 income. The residuary legatees named in the will are, with some conditions, the same as named in said paragraph 7. The trustee asks for the construction or interpretation of the will (1) as to the validity of the trust provision as to principal; (2) as to the validity of the trust provision as to the accumulation of income, and (3) for instructions as to whom the trust fund shall be paid.
The intention of the testator seems to be clear. He directs that the $1,000 which he establishes as the principal of the trust fund be invested and kept invested “ in some good interest bearing security or securities, for and during the life of the present wife of Milton P. Reese, son of Evelin P. Reese; ” and that upon her death the principal and all accumulations of interest or income thereon be paid to Milton P. Reese, if he be then hving, and if he then be not living, to the House of the Good Samaritan and the Jefferson County Orphan Asylum, share and share alike. The term of the trust is limited to the fife of “ the present wife of Milton P. Reese,” who was Rose B. Reese. The testator directs that it terminate upon her death and that the principal and interest or income be then paid over. It could not possibly extend beyond the life of one person in being at testator’s death and, therefore, could not suspend the absolute power of alienation beyond the period authorized by section 11 of the Personal Property Law (as amd. by Laws of 1929, chap. 229) which provides as follows: “The absolute ownership of personal property shall not be suspended by any limitation or condition, for a longer period than during the continuance and until the termination of not more than two Uves in being at the date of the instrument containing such UmL tation or condition, or, if such instrument be a last will and testament, for not more than two lives in being at the death of the testator; * * *. In other respects limitations of future or contingent interests in personal property, are subject to the rules prescribed in relation to future estates in real property.” The testator does not direct the payment of the income to any one during the trust term. He does not in so many words direct that it be not paid to any one during the trust term. But he does direct
Again the testator directs that upon the death of the wife of Milton P. Reese the trust terminate and the fund and its accumulations be paid to him, provided he is then living. Milton was thus given an estate in expectancy. This estate in expectancy was a future estate. It could not vest in possession until bis wife’s death. Section 100 of the Real Property Law, made applicable by section 11 of the Personal Property Law, provides that “ except as otherwise prescribed in this chapter, an express trust, valid as such in its creation, shall vest in the trustee the legal estate, subject only to the execution of the trust, and the beneficiary shall not take any legal estate or interest in the property, but may enforce the performance of the trust.” The legal title was then in the trustee during the period of the trust and it was only upon the termination of the trust that the interest of Milton P. Reese could vest in possession. (Wright v. Wright, 225 N. Y. 329.) In the Wright case, so far as is here applicable, the testator in his will provided as follows: “ My executors and trustees shall hold the remaining one-third part of my residuary estate in trust to receive the rents, issues and profits thereof during the life of my said sister [duly designated in the will] and to pay the same to her or in case of her incapacity to apply the same for her personal and exclusive use, and after her death either after, before or with me, to pay or apply such income and principal as follows: [and then after various specific bequests] (g.) I direct my executors and trustees to pay and deliver to the Washington Heights Library, in the City of New Yprk, upon the
In the case at bar we have precisely the same situation. There is no gift but by direction to the trustees to pay at a future time to Milton P. Reese if he shall then be hving. There is nothing in the language used by the testator which directly or indirectly imports a present or vested gift or which indicates such an intent. The estate or interest of Milton P. Reese was contingent. He might not survive his wife and in that event upon her death the trust would terminate and the trust fund would be paid to the two above-named institutions. But when the testator died, Milton P. Reese was living and he continued to five until December 1, 1930. Had he continued to five until his wife’s death, his contingent future estate would have vested in possession and he would have been the absolute owner of the corpus of the trust. He was, then, until his death the presumptive owner of the next eventual estate, which is defined in Manice v. Manice (supra) to mean the estate “ which is to take effect upon the happening of the event which terminates the accumulation.” In Matter of Kohler (231 N. Y. 353, at p. 376) Chase, J., says: “ The persons presumptively entitled to the next eventual estate are those who are entitled to the estate which is to take effect at the end of the period during which the rents and profits are undisposed of, or are invalidly accumulated. (Matter of Harteau, 204 N. Y. 292; St. John v. Andrews Institute for Girls, 191 N. Y. 254; Matter of Ossman v. Von Roemer, 221 N. Y. 381.) ”
It follows that Milton P. Reese, as the presumptive owner of the next eventual estate from the inception of the trust until his death, was entitled to the trust’s income which accrued during that period. (Manice v. Manice, 43 N. Y. 303; Delafield v. Shipman, 103 id. 463; Cook v. Lowry, 95 id. 103; Matter of Ossman v. Von Roemer, 221 id. 381; Gilman v. Reddington, 24 id. 9; Matter of Harteau, 204 id. 292; Cochrane v. Schell, 140 id. 516; Matter of Kohler, 231 id. 353; Matter of Glass, 126 Misc. 728; affd., 215 App. Div. 710; Young v. Barker, 141 id. 801; Matter of Viele, 35 id. 211; Gould v. Rutherfurd, 79 Hun, 280; Matter of Daggett, 130 Misc. 635.) The same should be paid to his estate. To hold otherwise would be to give validity to the unlawful accumulation directed by the testator and to nullify the statute. The income, if any, which has accrued since his death on December 1, 1930, together with the principal
Submit decree accordingly.