117 A.D. 890 | N.Y. App. Div. | 1907
Lead Opinion
Consideration of this appeal requires the construction of the 5th paragraph of the will of the deceased. He died on the 24th day of November, 1901, a Eter having been a member of the firm of Marx & Kawolle for upwards of thirty-one years. On May 19,1900, Marx & Kawolle entered into an agreement to continue their copartnership for a further term of five years, and by that agreement an elaborate scheme was provided whereby the partnership should not cease upon the death of either or both partners during that five-year period, but should be continued in the event of the death of one partner by his executors or personal representatives, and might be so continued in the case of the death of both partners, in the discretion of the executors of both. By his will, the executors of Marx were given full power to continue the business, and were, by
After making, certain bequests of household property and personal belongings in the 4th paragraph of his will, the testator provided in the 5th paragraph thereof as follows: “ Subject to the provisions relative to my copartnership business of Marx & Rawolle, I direct my executors hereinabove named, or such of them as shall qualify, to sell all the rest, residue and remainder of my estate, both real and .personal, at public or private sale, on such terms as they shall deqm best, and I hereby give them full power to'.grant and convey the same and to receive the proceeds thereof' and also the proceeds of my said copartnership, business when wound up. and the net income thereof, and I.give and'.bequeath the same as follows : ” (1), to his wife, the appellant, one-tliird absolutely; (2) to his executors in trust, oné-third, whose net income during her life should be paid’ to his wife, the remainder. to go to certain of the relatives of the wife and the testator^ and (3) the remaining one-third to go to certain of the testator’s'relatives. There was no' residuum of the testator’s estate, except the copartnership business of.Marx &. Rawolle. The executors.kept the estate invested.in that copartnership business- until July 5, 1905, when it Was sold, and brought $283,809.55. From the time of the testator’s death to the date of the sale, the net profit of the investment Of the testator. in the copartnership business amounted to $125,639.39. This latter amount, .the executrix received from the .firm in. jnstallmentS from time,to time, and as she received these moneys they were distributed among the various beneficiaries named in the will and its codicil, in accordance with what she supposed to be tlieir .provisions that is, o’f this net income she took for hersélf one-third absolutely; she took a. second third as the life interest in a third.of the testator’s residuary estáte,, and the .balance she divided'among those of the. testator’s relatives who. were mentioned in subdivision (o) of the 5th paragraph' of the will and the codicil thereto. . .
. The respondents: maintain-that becaiise she has divided the income of the business in thirds, and distributed it as though it weredncopié of the principal of the estate, the executrix -lias erred in her construction of the will." The provisions of the 5th. paragraph. aré
Such is, in our opinion, the true construction of the will, for the meaning of the 5 th paragraph is plain and unambiguous, and the infants should receive that portion of the estate to which they are entitled under this construction. The legatees who were infants at the time of the testator’s death and who have attained their majority since then, may or may not have ratified a practical construction theretotore placed upon the will contrary to the view we adopt of the testator’s intent; as to that the record is silent.- But as to the adults they seem now to have been estopped from asserting that the construction placed for the past five years upon this will by the 'executrix and by themselves is the true one. So far as the record shows a substantial portion of the estate has been actually distrib
The executrix has paid a tax of $633.54 to the Federal government, whicli it now seems was not a proper charge against the estate It seems to be admitted by counsel for both sides of thig controversy that the sum paid may be recovered back under the law as interpreted in Tilghman v. Eidman, (131 Fed. Rep. 651). While We might consider the direction of the learned surrogate that this amount be surcharged equivalent to a direction that the executrix should seek to recover this amount .back and that such course should be pursued, we are of opinion that the surrogate erred in charging this amount personally against the executrix.
The decree of. 'the surrogate should, .therefore, be reversed and the proceeding remanded to the Surrogate’s Court for further con-sideration in accordance with the views here expressed,, with one bill of costs payable out of .the estate ...to the appellant and ope bill to the respondents.
Hirsohberg, P. J., and Rich, J., concurred; Miller, J., read for modification, with whom Jerks, J., concurred.
Dissenting Opinion
I agree with the conclusion that fhe surrogate erred in surcharging the account of the executrix with the amount of the Federal inheritance tax paid by her, but' cannot assent to -the proposition that the 5th clause of-the will is too plain to admit, of construction ; disconnected from its context, and literally construed with reference ■ Solely to its grammatical construction, it doubtless warrants the interpretation about to be adopted by this court ; but I think the entire Will, illumined by such circumstances as we have a right to consider, reveals the testator’s purpose so clearly that it is our duty to give it effect-in spite of. inapt-or inaccurate modes of. expression. (Phillips v. Davies, 92 N. Y. 199.)
The residuary estate,-the subject of this -controversy, .consisted of the testator’s interest in the assets of the firm composed of himself and Frederick Rawolle; shortly"before making his will the- testa
In the 1st clause the testator authorized his executors to make investments and reinvestments, “including the right to purchase and continue the business ” theretofore conducted by him with said Rawolle; in the 2d clause he directed them to carry, out said partnership agreement. The 3d and 1th clauses are not now material. In the 5th he disposed of his residuary estate. Omitting, for the present, consideration of the language requiring construction, the property which he had in mind was disposed of by four subdivisions, L, M, N and O, respectively, as follows: (L) One-third to his wife absolutely, (M) one-sixth to his executors in trust to pay the income to his wife during her life, remainder to her sisters and a brother, (N) one-sixth to his executors in trust to pay the income to his wife during her life, remainder to his own sisters and a brother, (O) the remaining third to his said sisters and brother. Said brother having died leaving a son, who had a son and six daughters, said testator added a codicil to his will, in which he stated it to be his “particular desire” to provide for the support, maintenance and education of his said grandnieces, and provided, among other things, that one-half of that portion of his estate which otherwise would have been paid to his said nephew should be invested and the income paid to said grandnieces until each attained the age of
“ Fifth. Subject to- the provisions relative to my copartnership business of Marx & Bawolle, I direct my executors hereinabove named, or such of them as shall qualify, ..to sell. all the rest, residue and remainder of my estate, both real and personal, at public or private sale,, on such terms as they shall deem best, and I héreby give them full power to grant and convey the same and .to receive the-proceeds thereof and also the proceeds of my said copartnership business when wound up and the -net income thereof, and I give and béqueath the same as follows,” etc. .
It must not be- overlooked that the residuary estate and the interest in the copartnership business'were identical^ that, as evidenced both by the will and the partnership articles the testator considered said interest as "an investment,, which he directed his executors' tó continue, and he was not amiss in treating the continuance of the partnership business by the executors as an investment by them of his residuary estate, for so the courts, have treated similar directions: (Matter of McCollum, 80 App. Div. 362; Johnson v. Lawrence, 95 N. Y. 154; Bell v. Hepworth, 134 id. 442, 448 ; Columbia Watch Co. v. Hodenpyl, 135 id. 430, 434; Ferry v. Laible, 31 N. J. Eq. 566, 579.) The will speaks from the death of the' testator, and I think it plain from what has already been said that the testator intended, to give his wife one-third of -his residuary estate absolutely, and the use of another third, and that his purpose was not frustrated by the direction for the. continuance of said business. The respondents- do not argue that the income from said business was not- to be withdrawn until the business was wound -up.; they concede that it was to be received annually as the partnership articles provided, but insist that when receive^ said income was to be treated not as income, but as additions to the" corpus of the -estate, to be. distributed and
Jenks, J., concurred.
Decree of the Surrogate’s Court of. Kings county reversed and proceedings remitted for further consideration in accordance with opinion of Hooker, J., with one bill of costs to the appellant and one bill of costs to the respondents, payable from the fund.
