195 Misc. 204 | N.Y. Sur. Ct. | 1949
The trust created for Mary C. Bishop, one of the testator’s eight children, terminated upon her death which occurred on February 1, 1948. She had never married, left no issue and was survived by only one brother and one sister. The other five children of the testator had died in the period between his death and hers, all of them leaving issue now living. The will directs that the one eighth of the residuary estate held in trust for Mary C. Bishop shall under these circumstances “ be divided among * * * her brothers and sisters, share and share alike, the issue of any deceased child to take the share the parent would have taken if living. ’ ’ There is no doubt that the trust principal is to be divided into seven parts and that the living brother and sister each take one part. The dispute concerns the other five shares and gives rise to two questions: (1) Did the remainder interests vest in the seven children of the testator at the time of his death so that the shares are now payable to the personal representatives of the deceased children, or are the remainders contingent and payable to a class whose membership is fixed as of the termination of the trust? (2) If the remainders are contingent, is distribution to issue of deceased children to be per stirpes or per capita?
Moreover, it is evident that the testator was thinking here in terms of survivorship. The issue of a deceased child are to take the share he “ would have taken if living.” “ If living ” at what time? Survivorship at some time was, therefore, an express condition. An analysis of the entire will leads to the inference that survivorship at. the time of division was meant and not survivorship at an earlier date. A general rule of construction implies a like intent. Where ‘‘ a legacy is given to a class of persons, distributable at a time subsequent to the death of the testator, all persons in being at the time appointed for the distribution, who answer the description, whether born before or after the death of the testator, are deemed to be objects of the gift and are entitled to share. This construction is placed on the presumed intention of the testator.” (Matter of Smith, 131 N. Y. 239, 247; Teed v. Morton, 60 N. Y; 502; Matter of Crane, 164 N. Y. 71, 76; Salter v. Drowne, 205 N. Y. 204, 216; N. Y. Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93,103.) This implication of intent is confirmed by another canon of construction that where there is no direct gift to the beneficiaries but only a mandate to the trustees to divide and deliver, the gift is interpreted as contingent rather than vested. (N. Y. Life Ins. & Trust Co. v. Winthrop, supra; Matter of Bostwick, 236 N. Y. 242, 246; Salter v. Drowne, supra.)
The court holds also that distribution to issue of a deceased child of the testator is to be made per stirpes. The statutory interpretation of a gift to issue (Decedent Estate Law, § 47-a), is not applicable to the will of this testator who died many years before its effective date. The will itself, however, reveals an intent that distribution is to be per stirpes rather than per capita.
There are in the will many instances of substitutional gifts to issue of his children. Invariably a gift simply to issue of a child
The time for filing objections to the account is fixed at no later than twenty days from the publication of this decision. After determination of any issues raised by objections, or if none be filed, then upon the expiration of the time fixed herein, a decree may be submitted on notice construing the will accordingly.