177 A.D. 831 | N.Y. App. Div. | 1917
The testator directed that his residuary estate be divided into seven equal parts; and he gave one part to his widow, Emma Louise Harden, two parts to his trustees ■ for his daughters Dorothea, an infant, and Mary, now Mary Harden Fowler, one part to each of his two sons, Francis Acheson and James, who are adults, and the remaining two parts to his trustees for his sons Acheson Adair and Boss, who are infants.
The infant daughter, Dorothea, appealed both by her special guardian and by her general guardian. The infant sons are
The principal question presented by the appellants relates to the construction of the will with respect to the distribution of 5,796 shares of the capital stock of the Acheson Harden Company, which the decedent owned. After directing by the 4th paragraph of the will the division of his residuary estate into seven equal parts, and devising the seven parts as already stated in the succeeding paragraphs, 5th to 11th inclusive, by the 12th paragraph he appointed -his executors and trustees which appointment was modified by codicils. In the 12th paragraph, after appointing executors and trustees and providing for filling vacancies, he authorized his executors and trustees to sell his real estate; and authorized the executors to retain as investments any stock or securities which he might leave, and gave directions with respect to investments. After these provisions comes the final paragraph of the will, requiring construction, as follows: “It is also my will and I hereby direct, that the shares of stock of the Acheson Harden Company, which I may own at the time of my decease, be distributed by my said executors in kind in lieu of the proceeds of the same in money in payment if sufficient, or part payment if not sufficient of the shares of my residuary estate herein given and bequeathed to my sons Francis Acheson Harden and James Harden and the shares directed to be held in trust for the benefit of my sons Acheson Adair Harden and Ross Harden, an equal amount of said stock, however, to be distributed to each of said sons, and that said stock shall be so received by said sons Francis Acheson Harden and James Harden and the Trustees herein .appointed of the said trusts for the benefit of my said sons Acheson Adair Harden and Eoss Harden, and I further direct that for the purposes of fixing the value and amount of my residuary estate in order to determine the amounts of the several shares into which I have directed the same to be divided, and making the distribution hereinbefore directed, that the said stock be considered and taken to be worth its par value, and shall be so distributed and received in lieu of a sum of money equivalent to its par value; it
This paragraph contains the only provisions relating to the manner in which the seven parts of the residuary estate are to be determined for distribution. It is perfectly clear that in determining the shares of the sons he intended that the capital stock of the Acheson Harden Company should be allotted to them at par to the extent necessary to make up their respective shares. The controversy arises over the fact that about two-thirds of the stock will suffice for the shares of the sons, and that the stock is worth considerably more than par. There was an appraisal with respect to the value of the stock both at the time of the testator’s death and at the time of the accounting; and it appears thereby that at the time of his death it was worth $160 per share and had increased to $175 per share at the time of the accounting.
The question is whether the testator intended that all of the stock should be appraised at par for the purpose of distribution or only that part which goes to the sons. The surrogate ruled that the provisions of paragraph 12 herein quoted, with respect to the par value of the stock, relate only to that part of the stock bequeathed in kind to the four sons;' and that the surplus stock, which inures to the benefit of the widow and two daughters, must be appraised at its value at the time of the distribution. This construction manifestly creates a very unequal division instead of approximate equality, which was evidently the intention of the testator. Of course, owing to the par value being fixed at the value chargeable to the sons there would have been inequality in any event if the market value was
The income arising from the residuary estate between the time of the death of the testator and the accounting aggregated $63,110.42, and that amount, less the payments therefrom directed and authorized by the decree, and any further income thereafter received by the executors prior to the distribution was directed, after deducting and retaining lawful commissions, to be divided and allotted between the widow and children in the same proportion, namely, seven-fortieths to each of the sons and four-fortieths to the widow and each of the
In addition to the reasons already assigned for equal distribution of the income, on the assumption that the bequests of stock did not constitute specific legacies entitling those taking it to all dividends accruing or paid thereon subsequent to the death of the testator, it may be observed that the statute forbidding the payment of general legacies until after advertisement for claims or the lapse of a year from the issuance of let
These views will require a revision of the decree substantially throughout.
The infants are represented in the litigation by their special guardians and, therefore, the appeals by the general guardian were unauthorized and should be dismissed, but without costs, since, in the one case there was an appeal by both the general and special guardian and the contentions made by each were the same, and in the other the appeal was taken by the mother as general guardian in connection with her own appeal and no argument was made in behalf of the infant appellants.
It follows that the provisions of the decree inconsistent with the views herein expressed, should be reversed, and that the decree should be modified accordingly, with costs to all parties separately appearing, payable out of the residuary estate.
Clarke, P. J., Scott, Smith and Shearn, JJ., concurred.
Decree modified as indicated in opinion, and as modified affirmed, with costs to all parties separately appearing, payable out of the residuary estate. Order to be settled on notice.