83 N.Y.S. 299 | N.Y. App. Div. | 1903
Two questions only need, to be discussed in determining this appeal: First, whether or not the will operated as an equitable conversion of the testator’s real estate into personalty. Second, whether or not upon the death of the testator’s son, Forest T. Lee, Haney Holland and the other persons then living who answered the description of next of kin of the testator, acquired vested rights to share in the distribution of his estate.
First. There is no dispute here as to the law relating to equitable conversion, but the trouble arises in applying the law to the facts in this case. The law has been settled by a long' line of authorities that where, as here, the power of sale given to the executors is dis
" In the case, at bar the testator owned at the time of' his death his residence' property in the village of Glens' Falls, which by- the: 9th paragraph of his will he authorized his trustees to allow his son to ■occupy for his residence free of rent. He also owned another house .and lot near such village, the use of which he devised - to liis sister Haney Holland during her life by the' 2d paragraph of his will; and- he also owned some half dozen other pieces of real estate, part of which were vacant: All of this real estate went into the trust created by the 6th paragraph of the will and only, one piece has been ■sold by the trustees. By the 11th paragraph the testator directs that, the Words “ trust fund ” or “ trust funds,” as used “ shall be construed to include real estate as well as personal property.” And by the 13th paragraph lie expressly authorizes his trustees to “ retain and hold, as a part of said trust funds, any stocks, bonds or other securi- • ties or investments'whatever,” which he may have at the time of -his death. This language is broad enough to cover' his investments in real estate. The testator left upwards of $250,000 of personal property. This was ample to pay all debts and expenses. of administration, as well as all the specific legacies, and also to provide capital for all the trusts created in the will, outside of the trust created for the benefit of the son and to leave for the capital of the trust - so created not less than $200,000-personal property besides .the real estate. Thus far each of' the purposes of the testator, as expressed in his will, could be fully carried out without any conversion of -the'real estate into personalty, and without the exercise of the power of
The same reasoning will apply to the trust fund created for -either of the beneficiaries thereof, other than the son, for the testator provides in the 7th paragraph that “upon the death of the beneficiary (my brother or sister) for whom the trust fund shall have been designated, the principal of said trust fund shall be added to the principal of the trust fund to be designated for my said son, and thereafter shall be held, used and disposed of by the said trustees in the manner hereinafter provided for the disposition of the principal of the said trust fund to be designated for my son.”
That the testator did not intend a conversion is also apparent in the 9th paragraph where the trustees are given authority to allow
- I think for these reasons that this will does not show that the testator intended by it to work an equitable conversion of real estate into personalty, nor is there any necessity for such a conversion to carry out the will, and, therefore, the decision of the surrogate that the will did not work such a conversion was right.
Second. The contention of Sarah J. Snyder and the other surviving next of kin, that the administrator of the estate of Haney Holland is not entitled to share in the distribution of the trust funds created by the will, is based upon the 11th paragraph of the will, where it is directed that “ no person who shall at the time of my death answer the description of ‘ my next of kin,’ or my ‘ next of kin exclusive of my son,’ shall be deemed, by reason of that fact, to have acquired any vested right to share in. the distribution of any portion of my estate ; but the phrases above quoted shall be con
In each of the cases of Manice v. Manice (43 N. Y. 303, 367) and Shipman v. Rollins (98 id. 311, 325) the question was presented under facts quite similar to those existing herd, whether the estate vested at the time appointed by the testator for its distribution or at the time the actual distribution was made, and it was ■ held in each case that there was a vesting at the time fixed by the ■ testator for the division, and I think that principle must apply here..
Upon the death of the son, therefore, the residue of the estate vested in the next of kin of the testator described in the 9th- paragraph of his will, sub ject, of course, to the three trusts and the payment of the three annuities provided for therein, and subject to the expenses of administration, all the debts and the specific ■ legacies having been paid.
The testator, in addition to the brother and the two sisters who survived him and who were trust beneficiaries under his will, left as ■ next of kin, after the death of his son, the children of three .sisters who died before he did, so that upon a division there are six shares to be provided for, and one of these shares vested in Nancy Holland, and so far as it consisted of personal property passes to her administrator.
The decree should be affirmed, without costs.
All concurred.
Decree affirmed, without costs.