128 N.Y.S. 320 | N.Y. App. Div. | 1911
The proceeding which resulted in the decree from which this appeal is taken was begun by filing in Surrogate’s Court the petition of the executor and trustee stating that petitioner is desirous of accounting for the fund held by him as trustee under the provisions of the 3d paragraph of the will of Patrick Quinn, deceased, and distributing the said fund to those entitled thereto, and asking the direction of the court as to the proper distribution of the fund and a determination of the persons and corporations entitled thereto. Answers were interposed by certain of the interested parties questioning the validity, force and effect, not only of the 3d paragraph of the will, but also of the 4th and 5th paragraphs thereof, and ask
Patrick Quinn, the testator, died February 11, 1885, and his will, with one codicil thereto, both executed in 1884, was admitted to probate on the 26th of February, 1885. He left him surviving Ann Quinn, his widow, and Mary Clark, Ann Quinn and Elizabeth A. Quinn, his daughters, and Edward J. McGarry, Anna J. McGarry and Daniel P. McGarry, children of a deceased daughter, his only heirs at law and next of kin. Thereafter the widow, Ann Quinn, died intestate, leaving as her only next of kin her children and grandchildren, who are the children and grandchildren of the testator above named. After the death of the widow, Ann Quinn, her grandson Edward J. McGarry died, leaving two children, Donald F. and Kathleen McGarry. Thereafter and in December, 1907, Mary Clark died intestate, leaving her surviving her husband, Bernard Clark, and no descendant or ancestor in the direct line.
Testator’s will first directs the sale of all real estate he might own at his death, the proceeds to be added to all his other property, “ thereby constituting one fund,” which after payment therefrom of debts and expenses the executors are directed to distribute in accordance with the provisions of the will following. The succeeding clauses of the will now in question are as follows:
“ Third. I direct my executors to safely invest the six-fortieth
“ Fourth. I direct my executors hereinafter named to safely invest the six-fortieth (6-40) part of the fund above named, and pay the interest thereof half yearly to my daughter Ann, now a member of the order known as the Sisters of Mercy and named therein Sister M. Xavier, during the term of her natural life, and at her death to pay the principal sum so invested together with any accrued interest then remaining to the said order of the Sisters of Mercy to which my said daughter now belongs and to that house or branch of said order wherein she shall be next prior to her death.
“ Fifth. I direct my said executors to also safely invest another six-fortieth (6-40) part of the fund above named and pay the interest thereof half yearly to my daughter Elizabeth A. Quinn, now a member of the religious community known as the Ladies of the Sacred Heart during the term of her natural life; and at her death to pay the principal sum so invested together with any accrued interest then remaining, to the said Ladies of the Sacred Heart to which community I, at the death of my said daughter give, and bequeath the same.”
The determination of the Surrogate’s Court in respect to the several trust funds which the testator sought to create by these provisions of the will is that, as to the fund established by the 3d item of the will, the widow, Ann Quinn, took a vested contingent remainder in two of the six-fortieths of the estate set apart by that clause subject to the life estate therein of Mary Clark, and the life estate having terminated this portion of the fund is directed "to be paid to the
Counsel for appellants urges that the surrogate’s determination as to the share of the widow, Ann Quinn, in the fund established by the 3d clause and the disposition thereof which he has directed are erroneous. The theory upon which this claim is based is that the interest in remainder in this fund did not vest until the contingency, by which its ultimate destination was to be determined, should be decided, either by the death of the life beneficiary before her husband, or by the death of her husband leaving her surviving. The widow, Ann Quinn, having died before the life beneficiary, it is claimed she never had a vested interest in any part of the fund; and the two surviving daughters, being at the time the contingency was decided by the death of the life beneficiary leaving her husband surviving the only survivors of those to whom in that event the fund was directed to be paid, are now entitled to the whole fund. A sufficient answer to this claim would seem to be that the testator’s intention does not seem to be thus expressed. The contingent interest in remainder in this fund is given to the widow and the daughters, Ann and Elizabeth, as individuals whose right to take is neither limited nor enlarged by words of survivorship. Mor are they designated nor could they properly be considered as forming a class of contingent legatees the membership of which was intended by the testator to be determined when the contingency determining the disposition of the fund occurred.
That the widow, Ann Quinn, took a vested contingent interest in this fund, which on her death would pass as a part of her estate, seems also to be supported by authority. (Hennessy v. Patterson, 85 N. Y. 91.) But whether it be held that this share of the fund is a part of her estate, or should be treated as a lapsed legacy, the
The surrogate decides that the interests of Ann and Elizabeth in this fund are respectively subject to the same regulations and restrictions contained in the 4th and 5th clauses of the will by which the principal legacies to these beneficiaries are given ; and, having determined that these regulations and restrictions are illegal and make void the legacies severally given by thgse clauses, the same result follows as to their interests in this fund. It would seem that, if the regulations and restrictions sought to be imposed upon this direct gift of shares in this fund to the legatees are invalid and illegal, each of the legatees would take her share freed of these invalid restrictions and regulations, instead of the bequest itself being thereby made void and the whole interest of the beneficiary in the legacy swept away because of that fact alone. (Oxley v. Lane, 35 N. Y. 340, 349.)
In the 4th clause of the will testator makes evident his intention to establish a fund to be held and managed by his executors as trustees during the life of his daughter Ann, the income of which to be paid to her by the trustees half yearly. So much of his testamentary intention cannot be questioned as in any way illegal, unless it is clear that he has made this provision for his daughter dependent upon some other illegal disposition of the fund to such an extent that his intended testamentary disposition thereof as a whole would be thwarted if this provision be given effect and the illegal portion excluded. If the legal purposes of a trust are separable from ‘the illegal portion thereof, the former may be sustained, though the latter cannot. This principle is consistently stated and applied in numerous cases. That the life interest of Ann Quinn is in no way made dependent upon the ultimate disposition of the remainder, beyond the fact that it is to be derived as income from investment of the fund, is apparent. It is the principal provision for this daughter made by the will. If that fails, her personal benefit from the estate under the terms of the will is practically eliminated. Such result should be avoided unless its attainment is possible only .by'a palpable violation of legal principles. It also appears inferentially at least that for many years she has received the income of this
The similar interest of the daughter Elizabeth A. Quinn in the trust fund provided for by the 5th clause is for like reasons equally valid and subsisting.
The conclusions indicated above necessarily require a modification of the surrogate’s decree so far as it directs immediate distribution of these funds to the next of kin as property of the testator not effectually bequeathed by his will.
Whether the legatees to which these funds, subject to the life estates therein, are given by the terms of the will can take the several remainders on the termination of the life estates therein it is, perhaps, unnecessary now to determine. The stipulations of fact and the evidence in the record now before us are so incomplete and unsatisfactory that the past and present legal status of these corporations, or associations, and their several legal capacities to take these legacies are so uncertain that it is difficult, if not impossible, to pass intelligently upon their present rights as legatees. In view of the fact that these funds must continue to be held and managed by the trustee for the life of the several life beneficiaries therein decision as to the ultimate disposition of the funds may well abide until in some subsequent proceeding the rights of the parties in interest may be ascertained upon a more complete and satisfactory presentation of the necessary facts.
The decree should be modified so as to provide in effect that the trustee, during the life of Ann Quinn, hold, manage and invest the fund established by the 4th clause of the will together with one-third of the fund established by the 3d clause, and pay over the
All concurred.
Decree modified in accordance with opinion, and as' modified affirmed, with costs and disbursements to each party appearing by separate attorney, payable out of the estate.