125 N.Y.S. 699 | N.Y. App. Div. | 1910
This is an appeal from a decree of the. Surrogate’s Court óf Queens county settling the accounts of an administrator with a will annexed and providing for the distribution of the- estate. The only ■ question brought up ■ for consideration on this appeal arises from the interpretation of certain trust clauses in the will. The testator provided first that his widow should have the interest and income of his entire estate- for life. On her death he bequeaths and devises his-entire estate in trust to his executors. He directed the division - of the estate into three' equal shares. Then he. provides ' that- as to two of these equal shares the income from each share should-be paid-to his sons William A. and Douglas Hinchman, respectively, during their lives, with the remainders over. to their issue, respectively. The income on another share he directs to be paid to his son George W.,-and. bis. grandchild,, the son of - George'W., in equal portions
The appellants contend that the foregoing provisions constitute . an illegal suspension of the power of alienation or of the absolute ownership of the personal property for more than two lives “in .being,” and that the trusts created by the will are, therefore, void. It is perfectly plain that there is no suspension of the trust estates for more than two lives “in being,” as each of the trust estates terminated necessarily on the death of the life tenant, and passed to certain prescribed, though contingent, remaindermen. The scheme of the will is simple enough. • If either of his sons, William A. or Douglas, died without issue, then the remainders in the separate trusts held for their respective benefits would go to the survivors or the survivor of the three brothers, with the qualification, however, that if one or other of these, who might have been survivors, had died leaving lawful issuer then that issue were to have by substitution the rights which their parent would have had had he survived. . As to the son George W., however, the testator had a special purpose, for he expressly limited the remainder of that separate trust estate to one person only, the grandson, called William, and to this
Of. course, at the time of the- death of the testator^ there was an uncertainty as to just which persons might- be in being to' take af the termination, of each of the' separate trusts, and the remainders limited were c'onlingent in nature, but there- was no - uncertainty Whatever about the time of the termination of each of the three . separate trusts as. being.on the death of each of the three separate life tenants. .
The whole argument of the appellants proceeds apparently upon a confusion of ideas. If the whole estate was to-be held in trust in sólido, instead, of in three equal shares* then, there would be some basis for their contention. ' They urge, however, that the use of the Gord “ and,” in'the- sentence, which- reads as follows, “ should either . of'my said sons William A. and Douglas die: with out leaving lawful. issue, and- my said son George W. die without-leaving him surviving his said son whom I call William,”- indicates a purpose’ upon-the part of the testator to suspend the absolute ownership of the .shares held in trust during the- lives of the other two sons upon the contingency of the death in the meantime of the son George W. without leaving him surviving his son, called William. To adopt' this construction would be to render the trust void as suspending the absolute ownership -for three lives. (Ward v. Ward, 105 N. Y. 68.) To give to the testator’s language ■ this meaning because he-used the word “ and” in the connection above noted, would be wholly inconsistent, with the plain ' scheme of the will' as a:-whole. It was used clearly in a disjunctive sense,,'as is quite common both in spoken and written language'.- ■ Do court would resort to over-literalness -simply to destroy a testamentary provision. -Where the word “ arid’’appears from, the context to have .been used in the sénse of the word' “.or,” a court will so interpret-it, whether it be in a will or a statute. (Scott v. Guernsey, 48 N. Y. 106.)
The decree of the Surrogate’s Court .should' be affirmed, with cogts. . '
"Woodward, BurR, Thomas .'and Rich, JJ., concurred.
Decree of the Surrogate’s Court of Queens county affirmed, with costs. . ' ' '•