235 A.D. 185 | N.Y. App. Div. | 1932
Augustus C. Downing, the testator, died on April 2, 1895, a resident of the city and county of New York, leaving a last will and testament executed on June 15, 1888, and which was thereafter duly admitted to probate in Surrogate’s Court, New York county. Two codicils to the will were subsequently executed by the testator, neither of which affects the provisions of the will, except with relation to changes in the personnel of the executors and trustees thereof.
The testator left him surviving a widow and six children. By the terms of the testator’s will, after providing for the payment by his executors of his funeral expenses and just debts, the testator first bequeathed to his wife, Eliza B. Downing, absolutely, all jewelry in her possession at the time of his decease, all household furniture, property and effects, excepting only certain paintings, bronzes, library and books specifically mentioned in the third clause of his will. To his said wife the testator also bequeathed his horses, carriages and harnesses, stable furniture, etc., which he might own at the time of his decease. After bequeathing certain paintings and bronzes to his three daughters, and after providing a specific cash legacy to his widow, and a small trust fund for two servants, the testator disposed of all of the residue of his estate in the sixth clause of his will in the following language:
“ Sixth. All the rest, residue and remainder of my Estate real and personal of every kind and description and wherever situated of which I may die seized or possessed or to which I may in any way be entitled at the time of my decease, I give, devise and bequeath unto my Executors hereinafter named and appointed in trust upon the following Trusts. That is to say: — ”
The testator then proceeds to provide a trust during the life of his widow, and upon her death that the trust for his widow be continued as six separate trusts, each for the life of each of his six children respectively. At the time of the death of the testator’s widow all six of his children were living. Following the death of testator’s widow three of the testator’s children successively died, each leaving issue surviving. The fourth of the testator’s children, Nathalie L. Root, died May 12, 1930, leaving no issue her surviving. It is with relation to the trust of one-sixth of the residuary estate for the benefit of the daughter Nathalie L. Root
We are of the opinion that such construction placed upon the will of the testator by the surrogate was erroneous and in direct conflict with the clear intent of the testator as expressed in his will.
The clause of testator’s will here under construction, namely, as to the sixth part of the trust for the benefit of bis widow going to the daughter Nathalie L. Root, provides as follows: “ One of the said equal one sixth parts I give devise and bequeath to my said Executors In Trust to collect and receive the rents profits and income thereof and apply the same to [the use of] my said daughter Nathalie Downing during her natural life, and upon her decease I give devise and bequeath the said one-sixth part to her lawful issue her surviving if any, and in case of her decease not leaving lawful issue her surviving then and in that case upon her decease, to my children Augustus C. Downing, Jr., Lizzie, the wife of Harry D. Spear, Josephine the wife of Frederic Reiset, Helen H. Downing and Lucy Downing share and share alike or to the survivors or survivor of them, and in case neither of them shall survive my said daughter Nathalie then and in that case and upon her decease not leaving lawful issue her surviving to the lawful issue if any, or if none, to the heirs or next of. kin of my said children Augustus C., Lizzie, Josephine, Helen H., and Lucy, share and share alike per stirpes and not per capita.” The sixth part thus provided for the
We are, therefore, of the opinion that the surrogate erred in construing the clause of the testator’s will in question, and that upon the death of Nathalie L. Root the two survivors of the testator’s children, namely, Josephine de Reiset and Lucy Downing, took the entire remainder of said trust left for the benefit of testator’s daughter Nathalie.
The decree of the surrogate should, therefore, be reversed, with costs to the appellant payable out of the estate, and a decree entered passing the remainder of said trust to the two children of the testator who survived his daughter Nathalie, the daughter Josephine de Reiset receiving one-half thereof, and the other half to the estate of Lucy S. Dillon, deceased, represented by the appellant as executor of her last will and testament.
Finch, P. J., O’Malley, Sherman and Townley, JJ., concur.
Decree reversed, with costs to the appellant payable out of the estate, and a decree entered in accordance with opinion. Settle order on notice.