97 N.Y.S. 1017 | N.Y. App. Div. | 1906
Lead Opinion
"The sole point involved on this appeal is the proper interpretation of the residuary clause of testator’s will. George Wiley died October 15, 1902, leaving a will dated June 13, 1899, and a codicil thereto dated July 5, 1901. His estate, consisting of both real and personal property, amounted to about $350,000. He left a widow, no children,.and collateral relatives. After providing for his debts, funeral and burial expenses, a specific devise ■ of his house with a gift of $5,000 to his wife, testator made gifts by the .use of the same language in separate clauses, of pecuniary legacies and annuities, in favor of a sister-in-law, his two sisters, two nieces and two nephews, such'gifts being of specified amounts “ payable as so.on after m.y decease .as may be .convenient, and the further sum of (specifying) dollars per year for the period of. ten years after my decease.” A like annuity was given to one George Gibson. The sums thus given to these legatees outside of their annuities,aggregate .$15,000, and'the annuities themselves, figured for the ten years,
The 26th clause is as follows: “ All the rest, residue and remainder of my property and the interest which may be received from the sums set apart to pay the legacies hereinbefore devised, I give, devise and bequeath to my beloved wife, Ann Wiley, my sisters Mary Wiley and Elizabeth Wiley Gibson, my nieces Minnie Gibson and Sarah Boxborrow, and, my nephews Charles Boxborrow and Frank Assmus, to' be divided among them share • and share alike, and in case of the death of either my beloved wife, my sisters, my nieces or nephews before the whole of my estate shall be divided, then 1 direct the said residuary to be divided among the survivors only share and share alike.” > ,
It is conceded .that whexi the ■ testator wrote Boxborrow he
In Williams v. Jones (166 N. Y. 532) the court said: “ The intention of the testatrix must be. our absolute guide in construing her will. Such-is the mandate of the statute, and that principle is so-firmly established by the decisions of this and of her -courts as to render any citation of authorities needless.” Examining the will at bar we find the childless testator intent upon caring for his wife, his two sisters,*his sister-in-law, two nephews and two nieces. For we may dismiss the, specific legacies for small amounts from this consideration. To his wife he gave absolutely his house and its effects and $5,000. To the six others who were the object of his special care he gave various sums outright. To these six he also gave annuities for ten years after his decease. He then provided that in case of the. death of any of the beneficiaries to whom he had bequeathed any sum in his will before they had become entitled to the whole or any part of the said bequests, such part of the legacy bequeathed- should be paid' to their next of kin or legal representa
There is no legal objection to this scheme of the testator. There was by the will an absolute conversion of the real. estate into personalty as of the time of the testator’s death, and the several distributees took their interests as money and not as land. The title to the shares vested upon the death of the testator in the residuary legatees, subject to a limitation over to the survivors in case of death before the period of distribution. In Robert v. Corning (89 N. Y. 225) the court said: “ The postponement of the distribution, which was contemplated, was for the convenience of the estate to enable the executors advantageously to convert the property. * * ■ * ' The limitation over to the issue of any child dying before the distribution, was the limitation of a future contingent estate to such issue.” In the will at bar a conversion of the real estate into cash and mortgages was required. The executors were given full discretion “ to determine whether the said property shall be sold at public or private sale for all cash cr part cash or part mortgage.” The several bequests of specific amounts were all made payable at the convenience of the executors. These provisions indicate a knowledge on the part of the testator that the settlement of this estate would require time and that he intended such a deliberate settlement as should secure the best returns from the property sold. These provisions strengthen the conclusion I have reached and lend great forcé to the words “in case of the death * * * before the whole of my estate shall be divided.” It is settled beyond question that where there is a devise or bequest to one person in terms which would pass the fee or an absolute estate, if there were no words of limitation, and there is a subsequent provision giving the same estate to another upon the happening of a contingency, the devise or bequest over will take effect. In Norris v. Beyea (13 N. Y. 273) it was held that “ There is in truth no repugnancy in a general bequest'or devise to one person, in language which would ordinarily convey the whole estate and a subsequent provision that upon a contingent event the estate thus given should be diverted and go over to another person.
Mr. Roxbury having died before the period of distribution arrived, the conditional limitation over took effect and his administratrix acquired no right to the share of the residuary estate bequeathed to him. The-right to one-seventh of the residuary estate which had vested upon the death of the testator was divested by the happening of the contingency provided for.
So much of the decree of the surrogate as is appealed from must be reversed, with costs to the appellants payable out of the estate, and the proceeding remitted to the surrogate for action in accordance with the views herein expressed.
O’Brien, P. J.," Ingraham and McLaughlin, JJ., concurred; Houghton, J., dissented.
Sic.
Dissenting Opinion
(dissenting):
Charles W. Roxbury having survived the testator, I think he had a vested interest in such of the residuary estate as existed at the time of his own death, and that the "decree of the surrogate was right and should be affirmed.
T}ie intention of the testator seems quite plain. After the payment from his estate of the specific legacies which he had given, and taking out the provision for his monument, he must be presumed to have realized that a large residuum, consisting of more than half of his estate, would be left. The annuities or annual payments provided were not to be made from income for they were expressly stated by the testator in his codicil to be legacies payable in ten annual installments. It was, therefore, incumbent upon the executors to set apart $43,500 to meet these annual payments of $4,350 as they fell due each year for a period of ten years. This sum could not be permanently invested, because it was necessary to pay out one-tenth part of it annually. The testator undoubtedly assumed
The 26th clause begins with the words, “ All the rest,' residue and remainder of my property,” which is' quite comprehensive enough tp take in all property not otherwise disposed of. But the ■ testator desired to specify particularly that there was another ■residue which might accrue after his death, to wit, the- interest which might be received on the $43,500, and so he uses the words, “ and the interest which may be received from the sums, set apart to pay the legacies hereinbefore devised,”' meaning, of course, the legacies- which were payable in. ten annual'installments.' This Was -an artificial residuum ' as distinguished from the general residue of bis estate, and it. seems to me that he had-this artificial residuum only in mind when he provided that in case of the death of any of his named residuary legatees “ before the whole of my estate shall, be divided, then I direct the said residuary .to be divided among the- survivors only- share and share alike.”
The words last quoted are those which raise the ambiguity with, respect to the residuary clause. By apt and comprehensive words previously used the testator gave all the remainder of his estate to named residuary legatees share and share alike. This absolute gift should not be cut down to one dependent upon survivorship to a time when the estate should be finally settled, unless the language used compels such construction. The ambiguous language can well 'lay hold of, and apply to, the artificial residuum arising from interest on the fund held to pay the installment- legacies, and I think it should be confined to that and not be held to apply to the general residuary estate, thus avoiding repugnancy and the cutting, down of the superior estatd previously given. Mor is it doing any violence to the language so to do. The words “ before the whole of my estate shall be. divided ” imply that a division of'a part, to wit, the.
This view is strengthened by reference to the body of the will. The testator had no children, but he did have a wife. He gave her the house and its furnishings and $5,000 only "in money, but no annuity or legacy payable in installments. He was not as liberal with her as he wás with his sister Mary, for he gave her $5,000 and $1,000 a year for ten years. The testator must have known that estates are liable to be involved in litigation, and that a final accounting by executors and a distribution of funds is uncertain in time and may be long postponed. Strictly speaking, the whole of the estate, under the provisions of the will, could not; lie divided until ten years had elapsed. To my mind it seems to be doing great violence to the apparent intention of the testator to say that he meant that his wife, for whom he had made so meagre a .provision, should have nothing during a possibly prolonged administration of the .estate, to maintain herself and the home he had devised to her, and no right to any part of his residuary estate unless she survived a final division and distribution by his executors. Manifestly he was also solicitous for the welfare of his sisters and those of his nephews and - nieces who were mentioned in his will. He could not have intended that, although they survived him, their right to any part of his estate should be postponed to any such indefinite and possibly distant period as the time when “ the whole of my estate shall be divided.”
The law favors the vesting of estates; and limitations over, and vesting subject to be divested, and postponing enjoyment of property, will not be imputed to a testator if it can be avoided. It is only where the testator has unequivocally expressed his intention to-create thesé artificial estates that the courts- will adjudge them to
The interpretation put upon the will by the prevailing opinion seems to me at variance not only with the intention of the testator, but with the language which he used, and I, therefore, dissent from a reversal of the decree and vote for its affirmance.
Decree reversed, with costs to appellant payable out. of estate, and proceedings remitted to surrogate. Order filed.