18 Mills Surr. 239 | N.Y. Sur. Ct. | 1916
In this proceeding for the judicial settlement of the account of the executors of the last will and testament of Robert W. Tailer, deceased, a trustee of the trusts created for the benefit of James B. Pearsall under the will of Phebe Pearsall, deceased,- a construction of the said will of Phebe Pearsall, the settlor of the said trusts for the benefit of said James B. Pearsall, seems to be necessary and jurisdictional. The jurisdiction is duly invoked.
Paragraph Ho. IX of the will of Phebe Pearsall limiting the trust fund now in controversy is as follows: “ IX. I give and bequeath to my executor, or executors, the sum of one hundred thousand dollars, in trust, the income of which is to he applied to the sole use and benefit of my nephew; James B. Pearsall, during his life, and in case he shall not survive me, I give and bequeath the said principal sum of one hundred thousand- dollars to his lawful issue, per stirpes and not per
The contentions now made are substantially as follows: The legal representatives of Thomas claim, in opposition to the residuary legatees, the entire remainder of the fund bequeathed by said paragraph IX. Their theory is that the children of James B. Pearsall, as a class, were bequeathed the remainder after James B.’s life interest, and that menibership in this class is to be determined not as of the time of the life tenant’s death, but as of the time of the death of the testatrix. The residuary legatees contrarywise urge that the remainder interest was contingent until the death of the life tenant, and that, as both Helen and Thomas predeceased the life tenant, or the life beneficiary, the entire remainder interest lapsed and fell into the residuary estate. Neither can, I think, be maintained in its integrity. Both are overstatements. The various contentions have, however, been most elaborately and, I may add, skillfully pressed by the various counsel. But the true construction does not seem to me to be a very difficult one.
The interests in the remainder given to the children of James B. Pearsall nominatim were vested as of the death of Phebe Pearsall. The contrary contention must necessarily be based upon the rule that where a gift is contained merely in
To ascertain her actual intention resort may however be made to cognate limitations contained in her will. In paragraph VIII, after giving a life interest in a fund of $10,000 to her niece, Frances Pearsall Coles, the testatrix, Phebe Pearsall, provided: “At her death I direct that said principal sum of $10,000 shall be paid to Helen Pearsall and Thomas Pearsall, children of James B. Pearsall.” In paragraph X, after giving a life interest in a trust fund of $30,000 to her nephew, Hathaniel Coles Pearsall, the will provides: “At
Paragraph X of the will of Phebe Pearsall has already been construed in this court by Mr. Surrogate Cohalan to give to Helen and Thomas vested interests. 91 Mise. Rep. 212. The language of paragraph X left little room for doubt that the interests therein created were vested. The difference of phraseology in paragraphs IX and X of Phebe Pearsall’s will is not sufficient to indicate a very positive intention to create future estates or interests of different quantity or quality from that limited in paragraph VIII. Standing alone paragraph IX might, perhaps, lend itself more easily to a construction in favor of a contingent remainder under the “ divide and pay over rule.” But having regard to the reservation which always accompanies the juridical application of that rule the surrogate is, I think, required to hold that paragraph IX also limited vested interests by way of remainder. But let me pursue the matter further.
The testatrix, Phebe Pearsall, in paragraphs VIII, IX and X of her will and paragraph .IV of the codicil thereto, bequeathed similar interests to Helen and Thomas Pearsall. One general scheme seems to pervade the bequests of all the remainder interests in the four paragraphs. Helen and Thomas Pearsall nominatim were clearly given future interests to take
Doubtless words of technical and settled meaning in this will must be construed according to their legal signification, as it is not apparent from the context of the instrument that they were used in another sense. Matter of Gatlin, 91 Mise. Rep. 223. While there is some sort of general scheme evident in the several limitations noticed, yet the limitation in paragraph IX, it .will be observed, is peculiar and particular. It is improbable that a person obviously versed in the rules of construction applicable to wills would not more clearly contradistinguish vested from contingent interests than it is claimed, by counsel for Thomas’s legal representatives, was done by the draughtsman of paragraph IX of the will of Phebe Pearsall. The will of Phebe Pearsall is the product of a technical draughtsman. The intent of this instrument so draughted can be ascertained only from the technical language therein employed. In other words, the intent of testatrix in this instance coincides with the legal meaning of the technical language employed by the draughtsman of her will. If it is fair to attribute to the testatrix an intention to create a contingent interest by using language compelling the application of the “ divide and pay over rule,” it is necessary also to credit the testatrix with sufficient understanding of the difficulties of construction to prompt her clearly to express herself if she intended that the interest created in one paragraph should be contingent and not of the same quality as that created in the
My couclusioti that moiety of the trust fund vested in Thomas Pearsall at the time of the testatrix precludes the residuary clause from extending its operation in any event to the share of Thomas. In order, however, to negative the inclusive operation of the residuary clause also upon what l hold is the lapsed share of Helen, the administratrices of Thomas insist that both the remainder interests vested because the gifts to Helen and Thomas were not to them individually, but to them as a class, which closed only when the testatrix died. That construction seems to me novel and unjustifiable. The characteristics of a gift to a class have been often stated and most clearly. Matter of King, 200 K. Y. 189, and cases cited therein. A gift to a class doubtless resembles a joint tenancy, but more closely a gift to a quasi corporate entity. The gift to the entity has nothing to do with the components of the class until the time of division of the shares arrive. In paragraph IX the gifts is to individuals nominatim. An argument, however, is sought to be founded in the peculiar language of the first sentence of paragraph IX of the will of Phebe Pearsall. The legal representatives of Thomas say that the testatrix, by directing that the issue of James should take in case he predeceased the testatrix, evinced an intention that all the descendants of James should take as a class in the event he survived her, and therefore that the same intention should be accorded to the second sentence of paragraph IX, which provides for the actual disposition of the remainder interest in case James survive the testatrix. This is the strongest argument for that
If we compare other paragraphs of the will it is evident that wherever a direct gift is made a substitutional gift is made to the beneficiary’s issue upon the contingency that the first gift do not take effect. In so providing in the case of the gift to James B. Pearsall in paragraph IX the testatrix merely formulated the same general plan which she observed in making the gifts to her other nieces *and nephews. But she differentiated the bequest contained in paragraph IX by the succeeding words of the bequest. She specifies whom she meant by issue and the nature of their interest, share and share alike.” In this instance the maxim “ Expressio unius est exclusio alterius” is directly applicable. The question therefore is not what is the proper construction to be given to the first sentence in paragraph IX. The quality of the estate actually bequeathed by the second sentence is the only issue now to be decided. Reference to the • first sentence is important only because its influence on the intent of testatrix is properly to be considered along with that of the other portions of her will. While the context of a will may be used to elucidate a particular clause which presents difficulties of construction or interpretation, even when read as a part and portion only of the other dispositive provisions, there is nothing which requires a court of construction to read into the concluding sentence of paragraph IX, which is the granting clause of the gift, an intention to change the will settled and technical signification attaching 'to the particular words of gift there employed. In naming the sort of beneficiaries of the remainder interest in the first part of paragraph IX, the testatrix merely used the same general form- of bequest which she had employed in paragraphs VIII and X of her will and paragraph IV of the codicil thereto. In providing that it was the issue of James who should take in general substitution of the gift to him the testatrix followed the form of bequest which
The explanation of the difficulties in paragraph IX seems in short to be that in the first part the draughtsman systematically followed the language by which the other substitutional gifts were created, and in the second sentence employed the lame language as was used in the other gifts to Helen and Thomas. But in paragraph IX, when he comes to the clause limiting the gift, he particularized so as to meet the wishes of testatrix in the event either Helen or Thomas predeceased her. Had testatrix intended either to take the share of the other, the limitation would have read, “ to Helen and Thomas or the survivor.” As paragraph IX stands, the gift to Helen lapsed and that to Thomas vested. To each was bequeathed a moiety of the trust fund, subject to the life of their father.
There is no controversy in regard to what persons are the beneficiaries of the residuary estate. Mor is there any doubt raised that the residuary estate swallows up all the lapsed legacies. It clearly carries the lapsed gift to Helen.
Decreed accordingly.