142 Misc. 702 | N.Y. Sur. Ct. | 1932
The 2d, 5th, 14th and 16th paragraphs of decedent’s will, which was executed February 9, 1887, and admitted to probate February 28, 1887, are as follows:
“ Second. I give, devise and bequeath all my real estate, consisting of a house and lot in the village of Philadelphia, one farm in the town of Philadelphia and one farm in the town of LeRay, all in the County of Jefferson, New York to my beloved wife Anna Werner, (subject to the payment of the gifts and legacies hereinafter given to my children,) for and during the term of her natural life, together with all the rents issues and profits of said real estate, and on her death I give and devise and bequeath the said real estate or such thereof as may then be remaining to my children Mary J. Werner, Hattie M. Werner, George T. Werner and Ruth M. Werner to be equally divided among them share and share alike, the children of a deceased child taking the share their parent would have taken if living.”
“Fifth. I direct my executors hereinafter named to convert all my personal property, except such as is hereinafter mentioned, into money as soon as convenient and for the benefit of my estate, and invest the same in some good interest bearing security or securities — taking the same to themselves as executors, and such security or securities I give and bequeath to them in trust for the following uses and purposes: The income therefrom I give and bequeath to my said wife for the purpose of enabling her to keep and maintain the house and home as above provided, and the principal thereof to be used in paying off the said legacies I have hereinbefore given to my said children — the balance thereof if any to be kept invested during the life of my wife she receiving the income therefrom, and on her death the principal to be divided equally among my children in the manner mentioned in the second provision hereof.”
“ Fourteenth. Should any of my said children die without leaving issue before he or she receives his or her full share of my estate as above provided, I give devise and bequeath the share of such child to the survivors to be divided equally among them in the manner mentioned in the second provision hereof.”
“ Sixteenth. To my executors hereinafter named I give full power & authority to sell & convey such of my real estate as may be necessary to carry into force and effect the provisions of this my will.”
Decedent was survived by his widow, Anna Werner, and his four children, Mary J. Werner, Hattie M. Werner, George T. Werner and Ruth M. Werner, mentioned in the said 2d paragraph of said will. The daughter Mary J. ■ Werner thereafter married
The question here is, whether the interest in the property of the Conrad Werner estate to which Mary J. Werner Pohl became entitled upon the termination of her mother’s life use, passes as a part of her estate for distribution under her will, or whether it passes to the surviving children of Conrad Werner under the gift over provided for in his will. The executor of Mary J. Werner Pohl contends that under the 2d paragraph of Conrad Werner’s will the four children named therein were given vested interests in his property, subject only to his widow’s life use, and that upon her death they became absolutely entitled to the property then remaining, and acquired interests therein capable of being disposed of immediately and as they desired; that Mary J. Werner Pohl’s interest passes under her will and is to be distributed, according to the terms thereof. The administrators contend that the said share to which she became entitled upon Anna Werner’s death, not actually having been received by her prior to her death without leaving issue, passes, not under her will and as a part of her estate, but rather, under the limitation over contained in the Conrad Werner will, to the surviving children of Conrad Werner. They claim that the testator intended that the property should be kept in the Werner family and that its enjoyment should be restricted to his wife and children and his children’s issue. The answer to the question is to be found in the testator’s intent. We must look for it in the language of the will read in its entirety and particularly in the 14th paragraph read in connection with the 2d, 5th and 16th paragraphs. Did the testator intend that the gift over should take effect if any of his said children should die without leaving issue before the actual physical receipt by such child of his or her share of the estate without reference to any fixed time when such share
In both the March case and the Finley v. Bent case the determining factor was, not when the legacy was actually paid or actually received, but when the legatee became entitled to its payment or entitled to receive it. That was the dividing line. If the legatee died before that time the gift over took effect. If he was living at that time and died thereafter but before actually receiving the legacy the gift over did not take effect. Haight, J., cites the Finley v. Bent case with approval and at pages 116 and 117 says that it “ is an authority in support of the judgment ” in the March case which was affirmed. There is no conflict between Finley v. Bent (supra) and March v. March (supra). Both are in complete harmony with and support the rule laid down in Manice v. Manice (supra) “ that a limitation over to take effect in case of the death of the legatee before he has received his share, does not take effect, if the legatee lives to become entitled to it, though he die before it has been paid.”
The case here at bar is precisely within that rule and is deterinined by it. Mary J. Werner Pohl was given a legacy payable to her on the widow’s death. A limitation over to the surviving children of the testator was to take effect in case of her death
Submit decree accordingly.