190 N.E. 476 | NY | 1934
Harvey Chalmers died September 1, 1927. His wife and five children survived. To each child he bequeathed the sum of $30,000 absolutely. Further provision for each of them, to take effect at the death of the testator's wife, was made in the will, through the establishment of trust funds. The testator's widow died in January, 1932. One daughter, Mrs. Grace Chalmers Burnap, died before her, leaving no descendants. The trust funds which the testator established for the lives of his wife and deceased daughter must now be distributed. The courts must construe the will to determine to whom the principal passes.
Paragraph IV of the will provides in part: "I give and bequeath to my trustees, in trust, however, the sum of Fifty Thousand Dollars and authorize them * * * to apply the net income therefrom to the support and maintenance of my wife, Annie Chalmers for and during the term of her natural life and from and after her decease to apply the net income therefrom to the support and *243 maintenance of my daughter Grace Chalmers Burnap, for and during the term of her natural life and upon her decease said trust fund to descend to the children and descendants and next of kin of said Grace Chalmers Burnap absolutely." Each of the other four children was given a similar interest in other trust funds of the same amount.
Paragraph XI of the will provides: "All the rest, residue and remainder of my estate * * * I give, devise and bequeath to my trustees in trust, however, * * * to collect the rents, issues, profits, interest and income therefrom and to pay such rents, issues, profits, interest and income to my wife Annie Chalmers for and during the term of her natural life; and from after the decease of my said wife, I order and direct that my said residuary estate be divided into five equal parts and I give, devise and bequeath one of said parts to my said trustees * * * to receive, take, hold, invest and reinvest such part and to collect the rents, issues, profits and income therefrom and to pay the same to my daughter, Grace Chalmers Burnap, for and during the term of her natural life, and from and after the decease of my said daughter, I give, devise and bequeath said part to her heirs at law absolutely."
Under the will, the fund of $50,000 passes upon the death of the life beneficiaries to the "children and descendants and next of kin" of Grace Chalmers Burnap, and one-fifth part of the residuary estate passes to "her heirs at law." The description covers the same persons. The testator in using the terms "heirs at law" and "next of kin" intended to describe the persons who would take real or personal property in accordance with the provisions of the Decedent Estate Law (Cons. Laws, ch. 13). (Cf.New York Life Ins. Trust Co. v. Winthrop,
Applying the rule that the policy of the law favors the vesting of estates (Hersee v. Simpson,
True, the search for intention is often a search after a *246 phantom. Probably that is the case here. The testator has clearly evinced his intention that after the death of his wife each child should enjoy for life the income from certain trust funds and that the remainder should be distributed at the death of the second life tenant to her descendants, heirs at law or next of kin. Perhaps the testator did not envisage the possibility that the first life tenant would survive the second, and that distribution would occur at any time other than at the decease of the second life tenant, the date stated in the will. We have no reason to think that if the testator did envisage such possibility, he cared whether the class of heirs at law and next of kin were fixed at one time or another. "The question in such circumstances is one not of intention in the proper sense, but of the legal implications of one formula or another." (New YorkLife Ins. Trust Co. v. Winthrop, supra.)
In that case "the testator was mindful of the possibility that the daughter might die before the wife. Accordingly, he was careful to provide that only * * * `upon the death of my said wife and daughter' was the trustee to convey and deliver the subject-matter of the trust." So, too, in that case there was no direct gift, but only "one through the medium of a mandate to deliver and convey." These, together with other circumstances, there present and pointed out in the opinion, constrained this court to hold that "the will when read in its totality, is instinct with the desire to hold the ultimate gifts in abeyance until the termination of the trust, and thereupon to adapt and proportion them to the conditions then existing."
None of these circumstances are present here. As to part of his estate, the testator provided that "from and after the decease of my said daughter, I give, devise and bequeath said part to her heirs at law absolutely." Enjoyment might be postponed till a future time because a precedent life estate had not terminated, but the point *247 of time had arrived at which the gift was to take effect, and there is nothing to indicate that the testator intended to hold that gift in abeyance until the trust was terminated. Then the rule that the law favors the vesting of estates at the earliest time comes into play. We give effect to the implications of the formula where implications of actual intent are absent.
The fact that in this particular case the implications of the formula will result in the life tenant being vested also with a remainder which can never come into actual possession does not preclude the court from applying the formula. (United StatesTrust Co. v. Taylor,
The order should be affirmed, with costs payable out of the estate to all parties, including the special guardians who have filed briefs.
POUND, Ch. J., CRANE, O'BRIEN, HUBBS and CROUCH, JJ., concur; KELLOGG, J., not sitting.
Ordered accordingly. *248