186 A.D. 447 | N.Y. App. Div. | 1919
This is a voluntary proceeding for an accounting, and for the construction of the will and the appointment of a trustee to administer the trust or trusts therein provided for, instituted by the administrator on the 23d day of April, 1918.
The learned surrogate evidently of his own motion made the order of reference referring it to a referee to hear and determine all questions arising on the answer and objections and settlement of the account which the surrogate had power to determine and to report thereon to the court.
The motion to strike out the objections and to vacate the order of reference was made on the ground that the brother and widow of the testator, the only objectors to the account, have no interest in the estate and that, therefore, an unnecessary expense to the estate will be incurred if they are permitted to contest the reasonableness and lawfulness of the disbursements of the administrator.
The learned surrogate wrote no opinion and it does not appear whether the motion was denied on the theory that the remainder was not disposed of by the will or in the exercise of discretion on the ground that the order of reference was authorized by section 2536 of the Code of Civil Procedure and that, therefore, the court properly may await the report of the referee. It is not, however, material on what ground the motion was denied for we think it should have been granted. If the remainder passed under the will it became vested absolutely in the appellant, Ada Helen, and since on that theory those who filed objections to the account would have no interest, it is manifest that they should not be per
The provisions of the will directing the executor to sell, call in and convert into money all of the estate not consisting of money are clearly mandatory and worked an equitable conversion of the realty as of the time of the death of the testator. Mrs. Hackett resides in London, Eng., and the appellant Helen in Cork, Ireland. The respondent and the widow of the testator reside in the city of New York, but his sister resides in London, Eng.
It is a well-settled rule in the construction of wills that where a will is susceptible of a construction by which there may be a testamentary disposition of the entire estate of the testator, that construction will be given, for it is to be presumed that the testator by executing a last will and testament intended to dispose of his entire estate unless a contrary intent is found in the provisions of the will, and, therefore, the general rule is that a construction which avoids intestacy is to be given rather than one which creates intestacy. (Kalish v. Kalish, 166 N. Y. 368, 375; Meeks v. Meeks, 161 id. 66, 71; Matter of Ossman v. Von Roemer, 221 id. 381, 387; Williams v. Petit, 138 App. Div. 394; Schult v. Moll, 132 N. Y. 122.)
There is no reference in the will to the wife or brother or sister of the testator and there is no room for inference that that he intended to leave the remainder undisposed of so that they might take it after two life estates therein, for if he had been solicitous for them it is probable that he would have made some provision for them during the continuance of the Ufe estates. If he intended to give Ada Helen a life estate only, it is a reasonable inference that he would have Hmited her estate to one “ during her life ” as he had done with respect to the estate given to Mrs. Hackett. It is a well-settled rule both in this jurisdiction and in England that a gift of income of property without limitation with respect to the time of enjoyment with no other disposition of the corpus is intended as a gift of the corpus. (Hatch v. Bassett, 52 N. Y. 362;
It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, without costs, and that an order should be entered discharging the administrator on paying over the fund to a trustee to be appointed to administer the trust.
Clarke, P. J., Page, Shearn and Merrell, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, without costs, and an order directed to be entered as stated in opinion. Order to be settled on notice.