110 N.Y.S. 759 | N.Y. Sur. Ct. | 1908
Upon the judicial settlement of the account of Samuel S. Howland, as executor, issues are raised regarding the construction of paragraph twenty-ninth of decedent’s will, dated March 15, 1904. Gardiner G. Howland, decedent’s father,’ died December 9, 1851, leaving a will in which he bequeathed to each of his ten children one-tenth part of his residiiary estate; in the case of his five daughters, however, such portions were to be held in trust for them during their lives, with remainder to their issue. He made no provision as to the disposition of such trust funds for said daughters in the event
About the year 1889, some thirty-eight years after her father’s death, this decedent took a very active part in a litigation respecting the construction of paragraph twenty-first of his will. Such litigation, I believe, is very largely the key to the correct construction here. It (Meredith Howland, as trustee, etc., respondent, v. Louisa Howland Clendenin—this decedent —et al., appellants, and Louisa M. Howland et al., respondents, 134 N. Y. 305), must have been a matter of supreme importance to her during the years 1889 to 1892 inclusive. Follett, Ch. J., writing the opinion (decided October 1, 1892), describes decedent’s position: “ This will (Gardiner G. Howland’s) was duly probated and the estate settled, and the residue divided pursuant to this clause (paragraph twenty-first), into ten equal shares, one of which was set apart for Louisa H. Clendenin and another for Joanna H. Grinnell, both daughters of the testator, neither of whom have borne children and both of whom have passed the child-bearing age. A dispute arose between the said two daughters on the one side and their surviving brothers and sisters, and the descendants of the brothers and sisters who have died, on the other side, as to the disposition which is to be made of the shares so set apart for said two daughters after théir deaths without leaving children. Louisa H. Clendenin and Joanna H. Grinnell assert that, in the event that they die without leaving children, the portions set apart for them will form part of their respective estates, and that their personal representatives will be entitled to receive the same from the then trustees of said trust, and that they, the sisters, are entitled to dispose of their portions by will, and that in case they die intestate their administrators will be entitled to receive said capital from said trustees and dispose of it in accordance with the statutes of this state for the disposition of estates of persons dying intestate. On the contrary, the respond
Decedent’s counsel urged a construction of her father’s will that Follett, Ch. Jr., says (Ibid, p. 309) “would render the shares of those daughters” (i. e., the two $200,000 trust, funds) “ dying without issue subject to the claims of their creditors, and to their power to sell their portions to take effect, after death, or to dispose of them by will, and if not disposed of by will or contract they would, after the payment of debts, be distributed among their next of kin.”
The Court of Appeals affirmed the judgment of the lower court, holding that the childless daughters had, under the will' of their father, no interest in the remainder of their respective trust funds, but that as to such remainders respectively the said Gardiner G. Howland died intestate. The judgment on theremittitur was entered November 29, 1892, and provided, among other things, as follows: “ That in case either of the-said daughters, Louisa Howland Clendenin or Joanna H. Grinnell, shall die leaving no issue nor issue of any deceased issue-surviving her, then, inasmuch as by the terms of the said trust no provision is made for the disposition in that event of the* capital of the trust estate, the share of the testator’s estate devoted to the creation of the trust of the person so dying shall, upon her decease leaving no issue nor issue of any deceased issue surviving, be distributed among the heirs at law and next" of Join of the said testator
May we not presume that the decedent knew the law and the-final result of this case ? Is it conceivable that her then counsel, a former surrogate of this county, learned, farseeing and' considerate, did not clearly advise her of the outcome of her
Decedent’s residuary legatees on one side and her next of kin upon the other contend as to the construction of paragraph twenty-ninth of her will, the former claiming that this fund passes to them, the latter urging that she died intestate as to this particular fund, and that it was expressly excluded from said residuary clause, she not knowing or realizing that it belonged
A residuary gift in the language used by this testatrix includes not only her property as she knows it, but property of which she may die possessed, of which at the time of making her will she had no expectation whatsoever. If the decedent, was uncertain as to the disposition which the law would make-of this one-tenth interest, her mere uncertainty could not except, it out of the terms of her residuary gift. It would be necessary for her to distinctly and absolutely exclude it. I cannot interpret the provisions of paragraph twenty-ninth of this will as a distinct and absolute exclusion. Ho Hew York authority or American case has been called to my attention in the able-briefs of counsel for the next of kin, nor have I found any which in any sense might be regarded as a precedent for taking-this fund out of the terms of the residuary gift. As Lord Hals-bury, Chancellor of England, said in a House of Lords case: “ I have often had occasion to say of a case upon the construction of a will, that was a decision on a particular will, the judge-looking at every word of the special clauses. How can it be am authority upon the construction of another and a different-, will?” Scale v. Rawlins, Law Reports 1892, App. Cas. 342, 343.
Counsel for the next of kin have cited Circuitt v. Perry, 23;
“ Now, the residuary bequest is expressed in terms wide enough to include whatever personal estate not otherwise disposed of by her will the testatrix might have at her death, 'whether she knew that she had it or not. She intended whatever was hers, and was not otherwise disposed of, to go to her residuary legatee. It is true that she did not intend this particular fund to go at once to him, because she thought she had settled it already, and that, therefore, it was not hers. She made a mistake; it was hers, and the residuary bequest in terms carries it. * * * But then it is said that to construe the will so as to include this fund in the residuary bequest will be -contrary to several decisions, viz., Circuitt v. Berry, 23 Beav. 275; Harris v. Harris, Ir. R. 3 Eq. 610; Hawks v. Longridge, 29 L. T., N. S. 449, and Olibborn v. Olibborn, 9 Ir. Jur. 381. Certainly in each of these cases the courts held that a fund as to which a testator had made a mistake did not fall into the residue of his estate. But I cannot extract from those cases any principle of law which compels me to hold that there has been an intestacy in this case. In Circuitt v. Berry, Lord
Having reached the above conclusions, there is no occasion to pass upon the second request for instructions pleaded by the executor. The answers of respondents Meredith Howland and James Roosevelt Roosevelt are overruled. Costs to the executor and residuary legatees.
Ordered accordingly.