In Re the Final Settlement of the Accounts of Mahan

| NY | Mar 3, 1885

The question presented on this appeal arose upon an executor's accounting and depends upon the true construction of the will of Ellen McGovern. At the time of her death she owned the premises hereinafter mentioned, and left surviving her all the beneficiaries named in the will, viz.: Bridget Goode, her mother; James McGovern, a son, and John J., Mary, Ellen and Thomas F. Lyons, children by her first husband. She appointed Joseph H. Mahan executor, and devised to him, as such, houses and lots Nos. 611 and 613 Eleventh avenue, in trust to collect the income and profits, or, in his discretion, to sell and convey the premises, or either of them, and receive the proceeds, and therefrom pay such sum as might be necessary, not to exceed forty dollars per month — to her mother, so long as she survived, and from the balance pay such sums as might be necessary for the education and maintenance of her son James and the balance of the income and profits (if any, during the minority of James), divide equally between John J. Lyons, Thomas Francis Lyons and Mary Ellen Lyons, and upon the death of her mother, before James attained the age of twenty-one years, to apply the net income and profits of the house and lot No. 613, provided the same should not then have been sold and conveyed by him, or in case of such sale, then to apply the net income and profits of the proceeds and avails thereof for the use of James, until he should attain the age of twenty-one years; and upon the death of her mother, and upon her son James attaining the age of twenty-one years, the testatrix said: "I do give, devise and bequeath the said premises No. 613, if then unconveyed, or the avails thereof, if the same shall then have been conveyed, and all accumulations, if any, of the income and profits thereof, to my said son James, hisheirs, executors, administrators and assigns forever; and all the rest, residue and remainder of my property and estate I dothen give, devise and bequeath to my children, John J. Lyons, Thomas Francis Lyons and Mary Ellen Lyons, the survivor or survivors of them, share and share alike."

The will was admitted to probate in 1871, and soon after the real estate above described was sold by the executor. James became of age in February, 1882, and Bridget Goode, the mother, died in November of that year. Thomas F. Lyons was at that time the only survivor of the three children named in the residuary clause above quoted. It appeared from the account of the executor that there remained in his hands, of the proceeds of the sale of the two lots and houses, the sum of $12,580. Concerning one-half of this no question arises. The contention relates to the other half (that being the residue of the estate), which the surrogate directed to be divided and paid as follows: "To Thomas F. Lyons, one-third; to Margaret Lyons, as administratrix etc., of John J. Lyons, one-third; to James R. Langdon, as administrator of Mary E. Langdon, (formerly Lyons) one-third." Thomas claimed the whole of this residue, and appealed from so much of the decree as gave two-thirds of it to the representatives of his brother, John J., and his sister, Mary, and failing in his appeal to the General Term, comes to this court upon the ground that he, within the meaning of the testatrix, is the sole survivor of the three beneficiaries named by her.

We think the provisions of the will bring the case within the principle, well settled in this State, that if there be a direct gift to legatees, a direction for payment at the happening of a certain event shall not prevent its vesting, and, therefore, the personal representative of a legatee dying before the event happened shall be entitled to receive it at the time the legacy was directed to be paid to him, had he lived. (Moore v.Lyons, 25 Wend. 144; Everitt v. Everitt, 29 N.Y. 39" court="NY" date_filed="1864-03-05" href="https://app.midpage.ai/document/everitt-v--everitt-3632167?utm_source=webapp" opinion_id="3632167">29 N.Y. 39;Stevenson v. Lesley, 70 id. 512; Warner v. Durant, 76 id. 133; Robert v. Corning, 89 id. 225.) The intention of the testatrix, as gathered from these provisions, was to provide not only for the support of her mother during life, and the maintenance of her son James during his minority, but also for her other children. The limitation of the residue of her estate to them after her mother's death must be deemed, therefore, to have taken effect as a valid remainder on the death of the testatrix, and the words of survivorship held to refer to that event. All the children named survived her. At her death, therefore, they took an interest in proesenti in the rents and profits, or income of the real estate or its proceeds, and as to the body or residue, thesolvendum in futuro was annexed to its disposition or enjoyment, and not to the bequest. No other question is presented on this appeal, and as the distribution ordered by the surrogate was in conformity to these views, the judgment of the General Term approving it should be affirmed, with costs of this appeal to the respondent to be paid out of the estate, but without costs to any other party.

All concur.

Judgment affirmed.