160 N.Y.S. 501 | N.Y. Sur. Ct. | 1916
The estate of Ambrose Spitzmiller having been administered and now ready for final distribution, the executors have asked for a construction of the will of the testator whereby a trust created for his daughter-in-law, Carrie Spitz-miller, now terminated, shall be treated; as contingent rather than a vested remainder.
The testator, at the time of his decease, was survived by a widow, four children, and a daughter-in-law, who are all provided for under the terms of the will. The widow was left a life estate in practically the entire property reserving to the?
“ All of the rest of my personal property and estate remaining at the time of the decease of my wife, other than the bank stock as aforesaid, I give and bequeath to my daughter Cora Laub, „ and to my sons Louis Spitzmiller, William Spitzmiller and Charles Spitzmiller, to be divided between them equally share and share alike; and upon the decease of my daughter-in-law, Carrie Spitzmiller, the sum of ten thousand dollars shall likewise be divided equally between my daughter Cora Laub and my sons Louis Spitzmiller, William Spitzmiller and Charles Spitzmiller, share and share alike.”
Upon the death of the widow the estate' was divided among the four children excepting the trust fund of $10,000, and the necessity for construction arises because of the fact that one of the remaindermen, Louis Spitzmiller, predeceased the life tenant nearly eleven years, left a will bequeathing his property to his widow, who has since remarried and is now known as Julia Spitzmiller Hughes; the executors contending that the trust fund should be divided among the three surviving
The argument made in behalf of the executors is alluring as applied to what the testator might have done had he been able to contemplate the eventual distribution of the trust, fund, emphasizing the natural desire to confine the distribution of an estate of this character to those of his own blood. If this were the testato-Ps intention, it is unfortunate that he did not make reference to his “ surviving ” children, or to those “ then living.” The law in the case of legacies as in the case of devises prefers “ Whenever testator’s language is ambiguous, obscure or doubtful, a construction which will make a legacy vested rater than contingent, or, if contingent, will make it vested as soon as possible.”
The counsel for executors have quoted certain well established rules of construction, and cited- cases, in particular Salter v. Drowne (205 N. Y. 204), Matter of Baer (147 id. 348), supporting the doctrine where “ ‘ futurity is annexed to the subject of the gift ’ the devise * * * is * * * contingent.”
Another rule is sought to be invoked by counsel for the respondent : “ When the testator postpones the payment of a legacy simply for the purpose of creating an intermediate interest in some other person upon the determination of which interest the legacy is to be paid, such legacies are prima facie treated as vested upon the testator’s death and not contingent.” (Page Wills, 783; Underhill Wills, 1304; Matter of Crane, 164 N. Y. 71; Goebel v. Wolf, 113 id. 405 ; Matter of Gardner, 140 id. 122; Matter of Morris, 9 App. Div. 602, affd., 154 N. Y. 778.)
It is not within my province or jurisdiction to determine what the testator might have done, but to interpret the intention of the testator as expressed in his last will. There is no specific mention nor use of the word “ vesting.” There is- no
I am of the opinion that all general rules give way to the dominant and supreme rule that “ each will is to be construed by itself and depends for its meaning largely upon its own context and subject matter.” The precise words in question are not the same as used in any of the cases cited. Giving due consideration to the rules and cases cited in support thereof, I, therefore, find- that theit trust fund created by the testator for Carrie Spitzmiller vested in his four children at the time of his death.
Decreed accordingly.