105 Misc. 30 | N.Y. Sur. Ct. | 1918
This is an involved case and unraveling it has occasioned some perplexity to the surrogate. Two questions arise upon this accounting. The first question relates to the construction of the will; it is, Does the property which is accounted for pass under the fifth paragraph or clause of the will of testatrix, or under the sixth paragraph or clause, as a part of the residuary estate? The second question arises only in the event that it shall be found that the sixth clause is operative. Then it becomes necessary to determine the effect of a certain assignment by the residuary legatee.
It appears that the respondents Charles R. Lynde, Clarissa R. Hobson and Augusta De Val are the grandchildren of the testatrix. They and Elizabeth R. Lynde and Frances Speir, Jr., trustees under a deed of trust executed by Charles R. Lynde, claim under the fifth clause of the will. The portion of that clause which shows the property included is as follows: “ Fifth, I give, devise and bequeath to said executors, as trustees nevertheless, all the rest, residue and remainder of any and all cash or securities, including bonds and stocks, or bonds and mortgages, which I may own at the time of my decease * *
The claim just referred to is opposed by Elsie S.
The assignment referred to above and executed by Eollin H. Lynde is in substance as follows: “ In consideration of $1.00 and other good and valuable considerations, we, and each of us, do hereby fully grant, assign, transfer and set over unto the United States Trust Company of New York City, as trustee for Elsie Stuart Dodge (now in Paris with Emma H. Dodge as her adopted daughter), each and all of our several shares in remainder, and right, title and interest as remaindermen, in and to the property held in trust for said Emma H. Dodge during her life under the will of her father, Joseph W. Harper, deceased. * * * ”
Upon the face of the foregoing assignment it appears that no mention is made of the transfer of any part of the estate of the above named testatrix. Only the estate of Joseph W. Harper is mentioned. But it is said that it suffices that the estate now accounted for was in fact derived from the estate of Joseph W. Harper.
The source of the property appears to be as follows: The bulk of the estate of Augusta H. Lynde was distributed under two decrees made in 1908 and 1909. Subsequently the entire amount now in controversy
Respondent Elsie S. Dodge Pattee makes the contention that the entire property to which the present proceeding relates was part of the estate of Joseph W. Harper within the meaning of the- assignment by Rollin H. Lynde, i. e., both the property received directly from the executors of Joseph W. Harper and the property received from the legal representative of Hannah Harper. The grandchildren and the trustees under the deed of trust constituted by one of them dispute this contention on two grounds: They urge that the funds are in noway referred in the assignment and not covered thereby, and also that the decrees entered in the accounting of the Dodge, trust fund and in the aeóounting upon the Hannah Harper estate are res adjudicata. In both of such accountings all respondents in the present proceeding were duly made parties and in both proceedings Elsie S. Dodge Pattee sought an adjudication that the share which was decreed to be paid over to estate of. testatrix should be paid to her as assignee of Rollin H. Lynde.
It first becomes necessary to determine whether the executors are to distribute under the fifth or the sixth paragraph. The fifth obviously refers only to tangible property in the possession of the testatrix. Augusta H. Lynde died before the moneys were paid over. At the time of her death the interests outstanding were merely intangible property. If not included in the sixth clause it is difficult to understand what the testatrix meant by disposing of her residuary estate. The fifth paragraph is not broad enough to take in the money received from the Dodge trust fund and the Hannah Harper estate.
As the sixth clause governs, either Rollin H. Lynde’s executors take or his assignee, Elsie S. Dodge Pattee,
The assertion or contention in behalf of Elsie S. Dodge Pattee that as the money in the executor’s hands was derived in the first instance from the Joseph W. Harper estate Bollin H. Lynde’s assignment to her governs the title, remains to be examined. The instrument of assignment ivas under seal, and extensive evidence was offered to show the real intent of the assignor. This consists of a letter (Exhibit M) from Bollin H.-Lynde to his aunt, Mrs. Dodge. It explains the reasons which prompted the assignment. Bollin H. Lynde desired to put Elsie S. Dodge Pattee in the same position in which he believed his grandfather would have left her had he been able to foresee that his daughter, Emma Harper Dodge, would leave her surviving one to whom she bore all the relations of parent. Bollin H. Lynde’s purpose is clear. He wanted no part of the Dodge trust fund; Elsie S. Dodge Pattee was to take just as if she were the issue of Emma H. Dodge within the meaning of paragraph thirteenth of Joseph W. Harper’s will. Exhibits 0 and P, which are the reassignment as collateral security from Mrs. Pattee to Bollin II. Lynde of all of her interest in the estate of Joseph W. Harper, were offered to show that Bollin H. Lynde intended to transfer the property now in controversy. It is argued that if he had not intended to transfer the property he could not have accepted a reassignment. Both exhibits were admitted over objection. The objection is overruled and the evidence is received in order to explain a latent ambiguity in the written assignment. Matter of Coughlin, 171 App. Div. 662; affd., 220 N. Y. 681.
By way of illustration, let it be deemed established, by this evidence considered, that the assignment of Bollin H. Lynde intended to transfer directly or indi
But the absence of consideration will not stop a court of equity from carefully scrutinizing the language of an instrument, apparently purporting to be one of assignment, in order to ascertain whether or not there was a real intention to declare a trust. In the case before me, even if we deem the instrument not one of assignment to third parties as trustees for the benefit of Elsie'S. Dodge Pattee, and should come to the con
Upon the hearing some of the documentary evidence was received subject to its being disregarded by the court, if not properly in evidence. The correspondence between the members of Mrs. Dodge’s family and between herself and Elsie S. Dodge Pattee (Exhibits A to G inclusive) are not considered. They are hearsay and incompetent. Moreover they are only material to establish the relation of parent and child, and no claim can now be supported, and none is urged, that Elsie S. Dodge Pattee takes as one of the issue, within the meaning of the thirteenth paragraph of the will. Exhibits H, I, J, K and L are incompetent as hearsay and immaterial. Exhibit Q is clearly hearsay, incompetent and irrelevant.
The decree to be entered in this proceeding should provide that the estate passes under paragraph sixth. of the decedent’s will to her grandchildren and the trustees under Charles R. Lynde’s deed of trust.
Decreed accordingly.