234 A.D. 474 | N.Y. App. Div. | 1932
This appeal is from a decree of a surrogate of New York county directing the distribution of the principal of a trust of $50,000 created by the 4th clause of the will of Emile H. Roth, deceased, and of the principal of the trust of one-half of the residuary estate of said testator provided for by the 9th clause of the testator’s will. The surrogate held that one Marcelle Roth, a granddaughter of the testator and the sole surviving next of kin of the testator at his death, became vested with such remainders upon the testator’s death.
The testator was a grandfather of Marcelle Roth. She was the only child of testator’s son, Milton S. Roth, who died prior to the birth of his daughter. After the birth of Marcelle Roth she was taken into the family of the testator and there remained a member of his family for nineteen years, until the testator’s death, which occurred August 6, 1919. This seems to have been with the acquiescence of the daughter-in-law of the testator, for whom the testator made provision in his will dependent upon the granddaughter being allowed to remain in the custody of testator’s wife and of himself and of the survivor of them. Under the 4th clause of the testator’s will he left in trust for the benefit of his granddaughter, Marcelle Roth, whom he described as the “ daughter of my late dear son, Milton S.,” until she should arrive at the age of twenty-one years, and thereafter during her lifetime, the rents, issues and profits of said trust fund. The 4th clause of testator’s will further provided that the trustee should pay the principal sum of $50,000
The 9th clause of the testator’s said will, with reference to the principal of one-half of the trust fund left for the benefit of his wife during life, upon her death was to be paid to the lawful issue of said Marcelle, should she die leaving lawful issue her surviving, in equal portions. Then followed practically the same provision as to the principal or corpus of the share of said residuary estate remaining in case of the death of Marcelle without leaving lawful issue as was provided in the 4th clause of said will —■ the language being substantially the same in both clauses.
The surrogate decided that under the terms of said will the only next of kin of the testator surviving him was the said Marcelle Roth, his granddaughter. It is the contention of appellants that, notwithstanding the plain and unambiguous language of the will, the same should be construed as excluding the said Marcelle Roth, and that the testator meant by said provision that the said principal of said trust should go to testator’s next of kin who might be living after the death of his granddaughter, Marcelle Roth. The surrogate, in the decree appealed from, held that the testator used the words “ next of kin ” in their primary sense, intending to confine the class of remaindermen to "those living at the date of his death, and that, in the absence of a clearly expressed intention to the contrary, the class described by the testator as his heirs and next of kin to whom the remainders should go was to be ascertained as of the time of his death. It seems to us that the surrogate was quite right in thus interpreting the will of the testator. Had it been the testator’s intention that the remainders should go to his brothers and sisters, it would have been very easy for him to have provided in his ■will that the principal sums of said trusts should go to his next of ldn who might be living after the death of his granddaughter, Marcelle. He did nothing of the sort. In unambiguous language he provided that should Marcelle die without issue her surviving, then the principal should be divided between his next of ldn him surviving. His only next of ldn surviving him was his grandaughter, Marcelle. This granddaughter was the testator’s chief concern. In her veins alone flowed the blood of “ my late dear son, Milton S.” This grand
It is urged that there is some incongruity in the estate of a life beneficiary being the recipient of the corpus of a trust fund upon her death. Under the decisions of the court a life tenant of a trust having an interest in the principal of a remainder may still be the recipient of such remainder. ( United States Trust Co. v. Taylor, 193 App. Div. 153.) This was the effect of the decision of this court in that case written by Mr. Justice Greenbahm and affirmed by the Court of Appeals in 232 New York, 609, upon Justice Greenbatjm’s opinion. There can be no doubt that the law is well settled that under the language used by the testator in this case the testator meant that the principal of said trust funds should go to such of his next of kin as might be living at his death. In Matter of White (213 App. Div. 82) Justice McAvoy, voicing the unanimous opinion of this court, said (at p. 85): “ The general rule of testamentary construction is, that in the absence of a clear distinction to the contrary, the class described by the testator as heirs and next of kin, to whom a remainder interest is given by the will, is to be ascertained as of the time of his death. This construction is not changed by the fact that a fife estate may precede the bequest to the heirs at law or next of kin, nor by the circumstance that the bequest to such heirs or next of kin is contingent on an event that may or may not happen. There must be a clear intention manifested by the will to make a different disposition of the property where the bequest is to heirs at law and next of kin to take it out of the rule that heirs at law and next of kin so described will be determined as referring to those who are such at the time of testator’s death.”
Coming to the matter of intention of the testator, it seems to us he could never have intended that these remainders should go to any one other than to his granddaughter should she survive him.
The language of this will is clear and unambiguous. The principal of the trust was to go to his next of kin, “ me surviving.” The words " me surviving ” followed immediately after the words “ her surviving,” and seem to us to be of the utmost significance and must be taken in their ordinary and natural meaning as referring
“ We are of opinion that no such situation is presented; the language of the will is clear and the meaning of the testator very obvious. When he states that if Martin Brimmer, Jr., dies without issue the property ‘ shall descend to and vest in my heirs at law in the same manner that it would have descended to and vested in them if this will had not been made and the said Martin Brimmer, Jr., had died without issue before my decease,’ there is no reason for misapprehending the precise meaning of the testator. If Martin Brimmer, Jr., had died before the testator in 1844, and the latter had made no will, it is clear that his only heirs at law in that situation would have been his two sons, James S. and William W., and his daughter, Elizabeth.
“ When the testator employs language that is clear, definite and incapable of any other meaning than that which is conveyed by the words used, there is no reason for resorting to the rules of construction that are invoked in the case of ambiguous wills.
“ The counsel for the respondents have cited many cases in England, in this State and other States which follow the well-
“ We are of opinion that there is no occasion to resort to this rule, and we place our decision on the intention of the testator, manifested by language that requires no construction.”
The same position taken by the appellants in Wadsworth v. Murray (supra) is taken by the appellants here. The Court of Appeals held there, as the surrogate has here, that there was nothing to construe; that the language of the testator was clear and unambiguous, and that under such circumstances there was no requirement to construe the will differently than the plain language of the testator indicated. In this case the testator made a full and complete disposition of his property. Having done so, he apparently gave little thought to what should become of his property after the expiration of the life estates provided in the will. As was said in Matter of Bump (234 N. Y. 60): “ We confess that this search for the meaning of the testator from indications such as we have adverted to is somewhat unsatisfactory. Very possibly it is an attempt to read into the testator’s mind something of which he took no thought. While in the contingency which has occurred he did intend to dispose of the remainder of his estate, very possibly he had no fixed idea as to who his heirs should be. Very possibly all that he had in mind was to care for his wife, his daughter and her issue and his sisters. When that was once accomplished all was done that he desired to do. As to any remainder of his estate he had no particular design. Let it go as the law directs.” In this case the testator clearly stated that he wished such remainder to go to his next of kin him surviving. This language he fortified by stating that it was to be divided according to the laws of the State of New York governing the distribution of decedents’ estates as though he had died intestate.
We think the surrogate properly construed the will of the testator, and that the decree of the surrogate should be affirmed, with costs to the respondents against the appellants.
Finch, P. J., McAvoy, Martin and Sherman, JJ., concur.
Decree so far as appealed from affirmed,' with costs to the respondents against the appellants.