223 A.D. 496 | N.Y. App. Div. | 1928
Appeal by the testator’s niece, Sophia H. B. White, administratrix c. t. a. of the will of her father, Edward Banker, from a decree of the Surrogate’s Court of the county of Westchester, adjudging, among other things, that the corpus of a trust fund created by James H. Banker, deceased, passes to the estate of Ellen Josephine Banker, the widow of the testator, as residuary legatee and devisee under the will.
The testator, James H. Banker, left a will, the 1st and 2d paragraphs of which are:
“ First. I give to the executors of this my will twenty-five thousand dollars upon trust to safely invest and keep invested the same and to receive and collect the interest and income thereof and to apply the net income realized therefrom to the use of my wife Ellen Josephine Banker during her natural life and from and after her decease to apply such net income to the use of her niece Marie Gottsberger during her remaining natural life and upon the decease of the said Marie (or of my wife if she survive the said Marie) to pay over and transfer the principal to the then living lawful issue of the said Marie (the issue of a deceased child taking per stirpes the share which such child would take if living) and if no issue of the said Marie survive her (and also my wife) to pay over and transfer such principal to my brother Edward Banker.
“ Second. All the residue of my estate and property of every kind soever and wheresoever situate of or to which I may die seized, possessed or entitled I devise and bequeath absolutely and in fee to my wife Ellen Josephine Banker.”
The will was made January 22, 1884. James H. Banker, the testator, died February 10, 1885. His wife, Ellen Josephine Banker, and his friend, Daniel S. Appleton, were named executors therein. The Farmers’ Loan and Trust Company of New York was named successor trustee of the said trust after the death of said executors.
The testator was born October 12, 1826. He married Ellen Josephine Banker, the residuary legatee, on March 1, 1851. At the time he made the will he was fifty-eight years of age. Neither the decedent nor his wife had any issue living at the time the will was drawn, nor did either of them have any issue at the time of the testator’s death. Upon his death the testator left him surviving his widow, the said Ellen Josephine Banker; his mother; his brother,
The learned surrogate decided that the trust fund created by the will passes under the residuary clause to the estate of the widow, Ellen Josephine Banker, holding that upon the death of the widow and her niece, Marie Gottsberger, “ and not before, either the issue of Marie Gottsberger or Edward Banker were to succeed to the enjoyment of the estate. The words of gift to Edward Banker were words of substitution. (Matter of Evans, 234 N. Y. 42.) The contingent estate of Edward Banker was subject to be defeated by his death before the death of the surviving beneficiary of the trust. He took on the condition of survivorship. The substitutional gift to Edward Banker indicates an intent to make survivorship at the time set for distribution of the fund, a test of right to participate therein. (Matter of Evans, supra; Matter of Bostwick, 236 N. Y. 242; Matter of Leverich, 125 Misc. 130; Matter of Wronkow, 127 id. 679; Matter of Burdsall, 128 id. 582; affd., 221 App. Div. 756.) ” (129 Misc. 711, 713.)
There is nothing to indicate that Edward Banker took on condition of survivorship. Matter of Evans (234 N. Y. 42), cited by the learned surrogate, does not so hold. It does hold, as stated by the learned surrogate, that “ The words of gift to Edward Banker were words of substitution.” The will in that case gave to a daughter, Ellen, the use during her lifetime of a house which she occupied, and directed that after her decease the same be sold and the proceeds be equally divided between the two sons of the testator, John V. Evans and Evan T. Evans, or their heirs, respectively. The residuary estate was divided into three shares, the use of one of which shares was given to the daughter Ellen during her lifetime, and upon her death such share was to be divided between the sons “ or their heirs respectively.” At the time of the death of Ellen Evans one of the sons was alive and the other was dead. The distribution of the share that would have
In Matter of Bostwick (236 N. Y. 242), the testator devised a third of his residuary estate to a trustee upon a trust to manage the same .and to receive the rents, issues and profits thereof and to pay the same to his wife during her natural life. Upon the death of the wife the income was to be paid to the testator’s son until he should arrive at the age of twenty-one years, when he was to receive one-half the principal, the income from the remaining one-half to be paid to him during his life, and upon his death the trustee was to convey and deliver “ all the estate then held in trust, be it the whole or one-half part thereof as aforesaid, to the lawful issue of said Albert C. Bostwick [the son] share and share alike, or in default of such issue to the next of kin of said Albert C. Bostwick.” The testator died in 1892, survived by wife and son. The son died in 1911, at the age of thirty-three. The wife died in 1920. The son left five children and also left a will naming bis wife as executrix. The only question raised was as to the disposition of one-half of the estate that was to go to the son at the age of twenty-one. The Court of Appeals held: “ Whatever right he had, whether it be classified as vested or contingent, was subject to be divested by his death before his mother. The trustee at the appointed time was not merely to convey and assign. It was also to deliver. Conveyance and delivery were impossible while the trust for the mother was outstanding. The trust for the son was not to be divided into halves until it began, and it was not to begin until the prior trust had ended.” It will thus be seen that the Court of Appeals based its decision upon the express "direction of the testator and not upon any canon of construction.
Matter of Wronkow (127 Misc. 679) is also distinguishable from the case at bar by reason of the fact that upon the death of the life tenant the trustees were directed to pay, distribute and divide the trust estate “ then remaining in their hands,” and the question was whether the remainder was a vested or contingent remainder. The learned surrogate held that it was contingent, because: (1) There was a direction to divide, pay over and distribute at a future time. (2) The trustees were [given power to invade the principal. Thus the testator indicated that all the principal was not to vest in the remaindermen at his death, since part of it might be taken for the use of the life beneficiary. (3) The testator directed the trustees to divide and pay over the trust estate “ then remaining in their hands,” and further, to distribute all the remainder of the estate “ still remaining in the hands of my executors and trustees, after making the aforesaid payments.” (4) The intention of the testator was clear. (5) The provisions of the 11th clause of the will show that the testator made express provision in the event that any of the remaindermen should predecease the life tenant. As to each group, as the surrogate pointed out, ascertainment awaited the final distribution. The foregoing five features distinguish the Wronkow Case (supra).
Matter of Burdsall (128 Misc. 582; affd., 221 App. Div. 756) is distinguishable from the case at bar because the residuary legatees took on condition of survivorship, as expressly provided in the will. The court said: “ Call it vested, or contingent, as you may, it was subject to be divested by their death before the passing of Edith Porter Burritt.” There is no such provision in the will in question here.
In the will in question it was the intention of the testator to give to bis executors $25,000 of his estate, to be invested and the income thereof to be applied to the use of his wife, Ellen Josephine Banker, during her natural life, and after her death to the use of
The law favors the vesting of estates and a construction which will prevent the disinheritance of the issue of a remainderman who may die during the existence of the precedent estate. (Lewis v. Howe, 174 N. Y. 340; Hersee v. Simpson, 154 id. 496, 500, 502; Nelson v. Russell, 135 id. 137, 140; Manice v. Manice, 43 id. 303, 368; Connelly v. O’Brien, 166 id. 406; Trowbridge v. Coss, 126 App. Div. 679, 683; Foote v. Peaslee, 206 id. 329; affd., 237 N. Y. 586.)
The remainder is vested, not contingent. (R. S. pt. 2, chap. 1, tit. 2, §§ 11, 13; Id. pt. 2, chap. 4, tit. 4, §§ 1, 2; Moore v. Littel, 41 N. Y. 66.)
The words in said will “ upon the decease * * * to pay over and transfer the principal ” do not import contingency. These words simply postpone the enjoyment of the estate and not the vesting. (Connelly v. O’Brien, 166 N. Y. 406; 1 Jarm. Wills [6th Am. ed.], chap. 25, p. *763; Moore v. Lyons, 25 Wend. 119; Staples v. Mead, 152 App. Div. 745, 749; Hersee v. Simpson, 154 N. Y. 496, 500; Nelson v. Russell, 135 id. 137, 140; Livingston v. Greene, 52 id. 118, 123.)
The decree of the Surrogate’s Court of Westchester county should be modified by striking therefrom the paragraph, numbered 7, which determines that the corpus of the trust created by the 1st paragraph of the last will and testament of James H. Banker, deceased, passes to the estate of Ellen Josephine Banker, as residuary legatee and devisee under the said will, and by striking from said decree the provision which directs that the accounting party pay the sum of 824,300.12 to Sara H. Kent and Clara A. Bowron, as executrices of the last will and testament of Ellen Josephine Banker, deceased; by providing, in place thereof, that the corpus of the trust so created passes to the estate of Edward Banker, deceased,
Present — Lazansky, P. J., Rich, Hagarty, Seeger and Carswell, JJ.
Decree modified as stated in opinion and as so modified unanimously affirmed, with costs to appellant payable out of the estate.
Findings of fact and conclusions contained in said decree inconsistent herewith are reversed, and new findings and appropriate conclusions will be made. Settle order on notice.