10 Mills Surr. 74 | N.Y. Sur. Ct. | 1913
The last will of Charles Raab being entitled to probate, irrespective of the alleged invalidity of some of its provisions (Matter of Davis, 182 N. Y. 468; Matter of Trumble, 199 id. 454), is now here for construction, pursuant to section 2624, Code of Civil Procedure. Prior to the amendment of section 2624, in the year 1910 (Laws of 1910, chap. 584), the surrogate was without jurisdiction to construe devises or other provisions relating to real property contained in a will. Matter of Trotter, 182 N. Y. 465. Since that amendment it would appear to be otherwise, and the surrogate has such jurisdiction. Bollinger v. Taylor, 144 App. Div. 851; Matter of Randall, 77 Misc. Rep. 41. Unless the amendment of 1910 had such effect, its scope and purpose is not apparent. As the surrogate’s jurisdiction is not questioned in this proceeding, it will be taken for granted for the purposes of the present cause, although some points of the general legislation of 1910, touching the surrogate’s jurisdiction over devises, may be, perhaps, open to serious contention ultimately in the higher courts of the state. Those points are not, however, involved here, and, consequently, need not be noticed at large by the surrogate.
Where the meaning of a will is apparent from its language, the plain import of the language cannot be departed from, even though that import result in rendering the will invalid. Van Nostrand v. Moore, 52 N. Y. 12. Courts of construe
Where the intention of testator is clear on the face of the will itself no resort to extrinsic circumstances is permissible. It is not accurate to say in such a case that the court may always consider circumstances surrounding the testator when he made his will or at the time of his death in order to arrive at his intention. Higgins v. Dawson, A. C. 1; Smith v. Smith, 1 Edw. Ch. 189. Extrinsic evidence is never permissible where the intent of the testator may be gathered from the language of the Will itself. To my mind this is such a case. But it is permissible to resort to extrinsic circumstances in order to show who in fact were the objects of the testator’s bounty. There is an important distinction between evidence of testator’s intention deduced from circumstances surrounding testator, and the evidence of testator’s bounty deduced from facts surrounding the objects of such bounty. The latter kind of evidence is, I may say, generally admissible in causes of this character.
The will in this case makes no provision for the testator’s only son. It passes over him to the son’s children. The grandchildren, on the face of the will, were to be the main objects of the testator’s bounty. The testator, being capax, was quite within his rights in making such a disposition of his estate.
It does not seem possible to bring this will within the ruling of such decisions as Warner v. Durant (76 N. Y. 133), and Matter of Lincoln Trust Co. (76 Misc. Rep. 421), and treat the gift to each grandchild as severed instantly from the general estate, and to be paid to him in any event at majority, meanwhile giving him the income from the fund. This is just what the late Mr. Raab does not do. On the contrary, he provides that the trust property shall be kept by the trustee intact until the happening of an event specified.
Is the trust term prescribed too long? The will directs the trustee to collect the rents, issues and profits of the residuary estate during the minority of testator’s grandchildren, who at his death were four in number, ages eight, seven, four and two years, respectively. It will be observed that there is no direction to pay any portion of such rents, issues and profits to the grandchildren during their minority, but the same are to be accumulated and invested by the trustee. Upon the arrival at the age of twenty-one years of any of said grandchildren the trustee was directed to pay and distribute to such grandchild his or her proportionate share of the residuary and its accumulations. Then follows a provision of the will providing for the
On the face of the will there is no direction for division or distribution of the property before the arrival at the age of twenty-one of “ the oldest living grandchild.” Nor is there any direction to limit the division to the number of grandchildren who were living at the death of the testator and who would be living at the time of the division or would have died before that time leaving issue. On the contrary, there is an express direction to divide the property into as many shares as there may be children or representatives of children of his son, George Thomas Raab, living at the time of division. At what time or upon the occurrence of what event did the testator intend that such division should be made? Was it when the eldest grandchild living at the time of his death should arrive at the age of twenty-one or died before reaching that age, or was it when the eldest grandchild who survived should reach the age of twenty-one? If it be assumed m arguendo that testator intended the division of the trust estate to be made when the eldest grandchild living at the time of his death reached the age of twenty-one or died before that time, this will be contradictory of the direction contained in the first part of the paragraph to distribute and pay “ upon the arrival at the age of twenty-one years of any of my grandchildren.” If, however, the testator is taken to mean by the words “ at the time the oldest living grandchild arrives at the age of twenty-one years,” the eldest of his grandchildren who survived until he reached the age of twenty-one years the different phrases of the paragraph harmonize and express a definite conception, namely, that the trust was to continue until the eldest grandchild who survived
According to my interpretation of this will, already indicated, the provisions of the fifth and sixth clauses of the will
If, however, the provisions of this will were ambiguous and equally susceptible of some other interpretation which makes the limitation in trust valid it would be the surrogate’s duty to adopt such interpretation. Jacoby v. Jacoby, 188 N. Y. 124. But in arriving at such an interpretation the court cannot make a new will for the testator nor sanction a plain attempt on the part of a testator to make a testamentary disposition of property in a manner prohibited by statute. Let us, then, consider in detail the contentions of counsel that no perpetuity exists in this will.
It is contended by the learned counsel for the proponent that at the death of the testator each of the grandchildren then living took a vested interest in one-fourth of the corpus of the trust. As the only words of gift used by the testator were a direction to divide or pay at a future time the gift is not vested, but future and contingent. Salter v. Drowne, 205 N. Y. 215; Matter of Crane, 164 id. 171; McGillis v. McGillis, 154 id. 532. It is also contended that the testator intended to limit the beneficiaries of the trust fund to the grandchildren who were living at the time of his death. The testator having
The special guardian for the infants contends that the trust was only for the benefit of those grandchildren who survived the testator; that the latter intended that the trust should continue during the minority of the eldest grandchild living at his death, and that it should terminate upon the arrival of such grandchild at the age of twenty-one years, or by his death before reaching that age; and that at the time when the first of these events occurred the trust estate was to be divided into as many shares as there were grandchildren then living who survived the testator and the issue of any such deceased grandchildren. The objection to this contention is that it requires for its support two assumptions not warranted either by authority or by the language of the testator: First, that the testator intended the division to take place when the eldest grandchild living at his death reached twenty-one, or died before reaching that age; and second, that the testator intended to limit his bounty to such of his grandchildren as were living at the time of his death. Remembering that at the time the testator made his will his son, George Thomas Raab, had only two children, and that at the time of testator’s death his son had four children, the youngest of whom was only two years of age, it would seem as entirely unjustifiable assumption that the testator intended to exclude from participation in his estate those grandchildren who might
If we assume, for the sake of argument, that the testator intended that the division of the property held in trust should be made when the eldest grandchild living at the time of his death reached his majority or died before that time, we get the following result: If such grandchild died before arriving at the age of twenty-one without leaving issue, and if the other grandchildren who survived the testator were then living, the trustee could divide the trust fund into four shares and pay the one-fourth of the one who had died to the survivors as their absolute property. If the second eldest died before his majority without leaving issue, his share of the trust property would
The learned counsel for the proponents, as well as the special guardian for the infants, cite Matter of Lally, 136 App. Div. 781, in support of their position. But Matter of Lally is readily distinguishable from the matter under consideration. In that case the testator gave his property to trustees, with directions to hold and manage it for the support and education of his children during their minority and when the youngest of such children had arrived at the age of twenty-one to divide and distribute the property and accumulated income between such children, share and share alike. There was no gift over or substituted remainder. The court held that it was the intention of the testator that the trust should terminate upon the majority of his youngest daughter who survived him, or upon her death before reaching her majority, and that upon her reaching the age of twenty-one or dying before that time the trust terminated and the duty of the trustees was to divide and dis
The proponents rely upon the case of Seitz v. Faversham, 205 N. Y. 197. In that case the testatrix gave her real and personal property to the issue of her daughter, the rents and profits to be paid to, them until they arrived at the age of twenty-one. At the time of testatrix’s death her daughter had two children. The court held that a future contigent estate vested in the two infants upon the death of the testatrix, subject to divestment as to either one who should die before he became of age. In the event of such divestment the estate vested absolutely in the survivor, so that the trust was measured by two lives. In the matter under consideration there were four
The direction for accumulation is void, because upon any interpretation of the provisions of the will these accumulations would inure to the benefit of minors not in being at the time the accumulation commenced, namely, at the death of the testator. Thus if testator intended that the grandchildren born after his death should participate in his estate the direction for accumulation would be invalid. If he intended to limit the beneficiaries to those living at the time of his death and who arrived at the age of twenty-one, or died before the time of division leaving issue, as such issue "would be entitled to their parents’ share of the accumulation, and as they were not in being when.the accumulation commenced, the direction for such accumulation would be invalid. Real Prop. Law, § 61; Pers. Prop. Law, § 16; United States Trust Co. v. Soher, 178 N. Y. 442. But the invalidity of the direction for accumulation would not óf itself render the trust invalid. Cochrane v. Schell, 140 N. Y. 516. In view of the disposition which 1 intend to make of this matter it is not necessary to decide who would be entitled to the accumulation if the trust were valid.
In Jennings v. Jennings, 7 N. Y. 547, the testator directed that his executor should pay to his wife from the income of his estate sufficient for her support and the support and maintenance of his children, and that they should accumulate the remainder of the income until the eldest surviving child reached the age of twenty-one, when such child’s portion was to be
In Bindrim v. Ullrich, 64 App. Div. 444, testator gave his
The sixth clause provides that in the event of the death of all the children of George T. Raab before arriving at the age of twenty-one without leaving issue, the whole estate with the accumulated rents and profits shall be paid to the corporations therein mentioned. As to the accumulated rents and profits the bequest is void, because profits cannot be accumulated for the benefit of adults. Before the trustee could pay the trust estate or any part of it to those corporations it would be necessary for him to hold the property in trust during at least four lives, because it is only upon the death of the last survivor of the grandchildren without leaving issue that the corporation would be entitled to take. A remainder contingent because of an uncertain event, which cannot vest in possession until after the termination of more than four lives in being at the time of the creation of the estate upon which it is limited, is invalid. Besides, a contingent remainder limited upon an invalid trust term is invalid. Knox v. Jones, 47 N. Y. 389; Bindrem v. Ullrich, 64 App. Div. 499; Greenland v. Waddell, 116 N. Y. 234.
As the fifth and sixth clauses of the will are invalid the tes- ■ tator died intestate as to the property which he attempted to dispose of by those clauses, and such property passed to his heirs at law and next of kin. Let the decree be settled accordingly.
Decreed accordingly.