14 Mills Surr. 25 | N.Y. Sur. Ct. | 1915
The answer interposed to the account of the executors by Allan W. Ooolce, the residuary legatee under the will of the above-named deceased, necessitates a construction of the will before a proper decree can be made directing distribution. Practically the sole question before the court for determination is: What constitutes the principal of the trust funds created under paragraphs second, third and fourth of the will ? In order to properly determine this question the entire will must be taken into consideration, so as to ascertain the intent of the testatrix in connection with the creation of this trust estate.
The second paragraph provides:
“ Second. Out of the one-half of the residuary estate of my father, Henry Randel, which I received under and by virtue of the last par agraph in the sixth clause 'of his last will and testament, duly proved before the Surrogate of the County of Hew York on the first day of October, 1901 (and my final accounting as executrix of which will was filed with the Surrogate of the County of Hew York on or about April 13, 1903), I give and bequeath to my second cousin, James E. Baremore, the sum of ten thousand dollars.”
The third paragraph provides:
“ Third. The remainder of the one-half of the residuary estate of my father, Henry Randel, referred to in the second clause of this my will, after deducting said-bequest of $10,000 to my second cousin, James E. Baremore, I give, devise and bequeath to my executors and trustees hereinafter named, to be divided by them into the six separate trust funds which iare to be held by them separately upon trust to invest and reinvest the same and to collect and pay over the income and principal thereof as follows: ”
The fourth paragraph • provides:
Fourth. The other half of the residuary estate of my said father, Henry Handel, and as to which in the sixth clause of his said will he gave his wife, Caroline M. Handel, the power of appointment, and which half I received under such power of appointment, executed under the third clause of the will of my mother, said Caroline M. Handel, duly proved before the Surrogate of the said County of Hew York, May 9, 1904 (and my final account as executrix of which will was filed with the Surrogate of the County of Hew York on or about April 10, 1905), I give, devise and bequeath to my executors and trustees hereinafter named, to be divided by them into four separate trust funds which are to be held by them separately upon trust, to invest and reinvest the same and to collect and pay over the income and principal thereof as follows: ”
The testatrix then sets forth four separate trusts, each consisting of one-quarter of such “ other half of the residuary estate” of testatrix’s father.
The testatrix then provided by the fifth paragraph that:
“ As to any other property or estate of which I may die seized or possessed, and which did not come to me from my father’s estate, I give, devise and bequeath the same as follows: ” The testatrix then sets forth some twenty-four bequests from this other or individual property of hers, as distinct from the estate which came to her from her father.
By the sixth paragraph of the will the testatrix gave to Allan W. Cooke all of her residuary estate by the following language: “ All the rest, residue 'and remainder of my estate of every kind and nature, including such legacies as may lapse, I give,*28 devise and bequeath to my friend Allan W. Cooke, absolutely and forever.”
The seventh paragraph of the will gives to the executors and trustees a power of sale to convert any and all real and personal property at public or private sale, and at such time or times and on such terms as the executors and trustees shall in their discretion think proper and best.
The testatrix by the eighth paragraph nominated and appointed her executors, the accountants herein, and. then stated as follows:
“ The securities in which that part of my estate which came to me through the will of my father is invested are now kept in box Ho. 8789 in the Lincoln Safe Deposit Company, Ho. 32 East Forty-second street, in the City of Hew York. The other securities belonging to my estate are now kept in box Ho. 3777 in the said Lincoln Safe Deposit Company.”
The will was executed July 14, 1910, and the testatrix died August 30, 1912. It appears from the agreed- statement of facts submitted that Henry Randel, the father of the above-named testatrix, died in the year 1901, leaving a last will and testament, which was admitted to pro'bate in Hew York county on October 1, 1901, and in which he appointed his daughter, Emilie R. Rogers, executrix and trustee.
By the fifth paragraph of the will of Henry Randel it was provided as follows:
" Fifth. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of every kind and nature and wheresoever situated, to my executor and trustee hereinafter named or who may be appointed, and who may qualify, upon trust nevertheless to invest and reinvest my said estate from time to time as occasion may require, and to collect and get in the income derived therefrom, and after paying all taxes, assessments, interest charges and such sums as may be necessary to properly preserve and protect my real and*29 personal estate, to pay over the balance of income to my beloved wife, Caroline M. Randel, for and during her natural life.”
By the sixth paragraph as follows:
" Sixth. I direct my executor and trustee hereinafter named or who may be appointed, and who may qualify, upon the death of my wife, Caroline M. Randel, to pay over one-half of said trust estate to such person or persons, corporation or corporations as my said wife by her duly executed last will and testament may direct or appoint, and to pay over the other half of my said trust estate to my next of kin and heirs at law in such proportions as they would take under the laws of the State of Hew York had I died intestate.”
On April 13, 1903, Emilie R. Rogers filed an accounting in this court as executrix under the will of. her father, the said Henry Randel, and a decree was entered thereon finally and judicially settling that account, and in and by that decree the value of the residuary estate of Henry Randel was. fixed at $526,879.77 and1 was represented by numerous securities. Caroline M. Randel died April 22, 1904, leaving a last will and testament which was admitted to probate by this court on May 9, 1904. Emilie R. Rogers duly qualified’ as executrix of that will. On April 10, 1905, she filed her account as executrix .in this court, and the value of the residuary estate of Caroline M. Randel was fixed at $3,250.57, consisting of cash only. At the time of the death of Caroline M. Randel,'Emilie R. Rogers, as next of kin and heir at law of Henry Randel, and as appointee under the will of Caroline M. Randel, received the whole of the trust fund created 'by paragraphs fifth and sixth of the will of Henry Randel. That at the time of the death of Emilie R. Rogers numerous securities belonging to her own estate were in the safe deposit box known as Ho. 3777 in the Lincoln Safe Deposit Company. There were also numerous securities and of considerable value in box Ho. 3789
By the second and fourth paragraphs of the will the testatrix clearly bequeaths that portion of her estate received by her from her father, and as shown by her accounting to amount to $526,879.77, and that bequest is not limited to- or curtailed by the provisions of the eighth paragraph, which is merely an instruction to the executors as to where the securities representing this fund are to be found. The testatrix did not make specific bequests of these securities in box Ho. 3789 of the principal of said trust funds, but said trust funds are general legacies, the gross principal whereof is $526,879.77, less the sums her will directs to’ be paid thereout. This is evidenced by reason of the gift of the sum of money, to wit, $10,000, by the second paragraph of her will out of “ her father’s estate,” and by the division of the estate into unequal fractions. (Matter of Fisher, 93 App. Div. 186 ; Matter of Hodgman, 140 N. Y. 421 ; Matter of Van Vliet, 5 Misc. Rep. 169 ; Matter of King, 122 App. Div. 354.)
Decreed accordingly.