125 Misc. 351 | N.Y. Sur. Ct. | 1925
In this accounting an issue as to the construction of the will arises. After making certain specific bequests, the will provides in paragraph 3: “Unto my father, Joseph Roth, I give and bequeath my entire estate, with absolute use and control of everything — it being understood that my estate is to become the sole and exclusive property and possession of my father, under the condition, nevertheless that upon the death of my said father one half of the entire estate he leaves is to be divided as follows: To my cousins, Lizzie Gasser, Margaret Gasser Thompson, Josephine Gasser, Katie Gasser and Lucy Bosshard, I give the sum of one thousand ($1,000) Dollars each. To the two surviving children of the deceased cousin, Tillie Gasser, five hundred ($500) dollars each; to Theodore Bosshard, Ruth Loveless and Carl Loveless, five hundred ($500) Dollars each. * * * To my friend, Miss Mary F. Champlin, I give five hundred Dollars ($500) and to Mrs.
Various questions as to construction are raised by the parties as follows:
(a) Was there an absolute gift of the entire residue to the father or was he given a legal fife estate with power to invade the principal?
(b) If the latter alternative is to be adopted, did one-half of the property remaining at the time of his death vest absolutely in the father’s estate and the remaining half vest in the individual legatees mentioned in paragraph 3 and the charitable corporations named in paragraph 4, thereby avoiding any intestacy?
(c) Were the charitable corporations entitled to one-half of the corpus, and out of the remaining half were the amounts directed to be paid the individuals named in paragraph 3 first to be deducted and the balance of the one-half paid to the next of kin of the testatrix through intestacy?
(1) At the father’s death the entire fund was left intact in this estate. I hold that the gifts over of the remainder are effective and under the provisions of the will that one-half of the estate which remained at the date of death of the father became part of his estate outright. I hold further that as to the other half, of such corpus remaining at the time of his death there must be paid the amounts specified in paragraph 3 to the legatees named therein and the residue of such one-half must be paid in equal shares to the charitable corporations named in paragraph 4. Although the will is somewhat ambiguous, I believe that the scheme of disposition intended by the testatrix is fairly clear. My conclusion necessarily rejects the theory that an outright gift was made to the father of the entire residue. It is claimed on this phase of the case that the absolute gift to the father could not be cut down by the ambiguous language contained in paragraph 3. It is contended that the case of Tillman v. Ogren (227 N. Y. 495) is authority for such an interpretation. But the will in the Tillman case was quite different in its terms from the one here. There the gift was to the husband of the decedent and to his heirs forever “ with the understanding that at the decease of the said Lars Erickson [the husband] all of the estate which he shall derive under this will which shall then remain by him undisposed of he shall give and turn over to my sister Amanda Tillman.” The Court of Appeals held that the husband, Lars Erickson, took an absolute gift and
(2) Under the language of paragraphs 3 and 4 the will must be construed as vesting one-half of the corpus remaining at the death of the father in his estate outright. The testatrix clearly intended that such one-half should pass under his will, if any, or in default thereof, should vest in his next of kin. The only disposition made by the testatrix here was of the remaining one-half. Out of that part of the estate there must be paid to the specified legatees the amounts fixed in paragraph 3. The residue of that one-half, under the provisions of paragraph 4, must be distributed in equal shares to the charitable corporations named therein. The contention that the charities are entitled to one-half the fund must be overruled. The testatrix, after directing the payment of the pecuniary legacies, emphasized her intent to dispose only of the residue of the one-half by providing that “ the remainder of the half of my father’s estate is to be divided in equal shares ” among the five charitable institutions. The words employed were clearly used by the testatrix with a definite purpose. We are bound to follow the language she selected. There is no
Submit decree on notice construing the will and settling the account accordingly.