129 Misc. 829 | N.Y. Sur. Ct. | 1927
In this accounting proceeding the court was asked to construe the will of the testatrix. In paragraph “ first ” of the will she gave to her executors all her “ interest and stock in and to the Camp Colang, Inc.,” in trust (a) to set aside “ so much of the stock ” as would produce Two thousand dollars per annum, which was directed to be paid to her parents during their lives; (b) “ after setting aside the foregoing, so much of the stock ” as would produce $2,500 was directed to be set aside and the income used for the support, maintenance and education of her children. The will further directed that upon the death of her parents, the stock set aside for them should be added to the stock set aside for the children. No clear disposition of the remainders is provided for in the will, except that the trustees in their discretion may give the children property held in trust for them “ after they have reached their majority.” The testatrix died in 1921. She left her surviving her father and mother and her two infant children.
Upon a hearing had before me in aid of interpretation, the parties stipulated and agreed on a construction which the evidence showed would carry out the intention of the testatrix. One of the • questions, interesting enough to merit note herein, arose because of the failure of the total trust estate to yield the income anticipated by the testatrix. The total amount of the trust fund will not yield more than $800 a year, whereas the will directs the payment of $2,000 annually to the parents of the testatrix, and $2,500 annually to her children. Under these circumstances it was asked: Are the parents entitled to a preference in the payment of their incomes? If so, the entire income would be exhausted, the children would derive no present interest in the fund, and provision for their maintenance, expressly directed by their mother’s will, is entirely lost. I held that no right of priority in the parents was intended by the maker of the will. The use of the words in subdivision “ b ” of paragraph “ first,” “ after setting aside the foregoing ” (referring to the stock necessary to produce the $2,000 annual income for the parents) was not a mandatory direction of preference which deprived the children of participation.
It is a well-established principle of construction that the persons dependent upon the testator’s bounty and other-wise unprovided for by the will, or by settlement, shall not suffer by reason of insufficiency of assets. Legacies to dependents in such cases must be preferred. Particularly is this rule applied where the testator, as in this estate, leaves minor children. (Matter of Neil, 238 N. Y. 138, revg. 205 App. Div. 605, revg. 117 Misc. 498; Matter of Lloyd, 166 App. Div. 1; Matter of Wenner, 125 id. 358; affd., 193 N. Y. 672; Bliven v. Seymour, 88 id. 469; Petrie v. Petrie, 7 Lans. 90; Stewart v. Chambers, 2 Sandf. Ch. 382; 2 David’s New York Law of Wills, 1633 et seq.; Brown v. Knapp, 79 N. Y. 136; Matter of Obst, 115 Misc. 711.)
Surrogate Slater in his decision in Matter of Neil (117 Misc. 498) comprehensively reviews the authorities applicable since the leading English case of Lewin v. Lewin (2 Ves. Sen. 415 [1752]). He cites Petrie v. Petrie (7 Lans. 90) where the court said: “ A legacy for education, like one for maintenance, must be paid in preference to the general legacies given by the will, if the assets are insufficient for the purpose.” He quotes from Scofield v. Adams (12 Hun, 366) commenting on the preceding cases, “ the rule of law enunciated in them is reasonable, as it is natural and in accordance with common sentiments of affection, * * *. It commends itself to the conscience as just and right. It would be unnatural not to intend especial favor in the bestowal of bounties to those who were strong in the affections and dependent upon kind regard.” More
The written agreement executed by the parties herein provides that the provision for the children be preferred, and that there was an ademption of the provisions for the benefit of the parents. Decree signed approving the agreement settling the issues raised, and settling thé account accordingly.