120 Misc. 22 | N.Y. Sur. Ct. | 1922
The reason for this opinion is found in the title to the proceeding. John B. Trevor’s will was admitted to probate January 9, 1891. Proceedings affecting it have been before this court in two other instances. Matter of Stewart, 88 App. Div. 23 ; Matter of Trevor, 119 Misc. Rep. 277. He was survived by his widow, Emily N. Trevor, and his four children, Henry G. Trevor, aged twenty-five years, a son by a former wife, and Mary T. Trevor, aged eighteen years, later Mary T. Winthrop, Emily H. Trevor, aged sixteen years, and John B. Trevor, Jr., aged ten years, children by his second wife. Mary T. Winthrop died December 1, 1900, leaving two children, Emily and Kate Winthrop. Testator’s widow died July 22, 1922.
By the 2d paragraph of his will the testator created a trust in his homestead property at Yonkers for the fife of his wife for the purpose of a family residence for his wife and children, to be continued after her death in the discretion of the trustees, and provided that the power of alienation should not be suspended longer than the life of his widow and the youngest of his children who should be living at his death. At the termination of the trust the property is to, be sold and the proceeds of sale added to the residuary estate which is elsewhere given to bis four children.
By the 4th paragraph of the will the testator gives the rest, residue and remainder of his estate, real and personal, unto his executors as trustees to “ set apart and invest out of my personal estate one equal third part thereof, and to hold the same for the
The gift of the residuary estate is found in the 7th paragraph of said will. It follows: “ In regard to the disposition and distribution of the remainder of my residuary estate after making the provision for the benefit of my wife, out of my personal estate, and the other provisions hereinbefore directed to be made out of the remaining two-thirds of my personal estate, I make the following directions. 1 direct my executors to keep separate accounts in reference to all the real estate which may be held by me at my death, or in which I may be interested as a member of the firm of Trevor & Colgate and of James B. Colgate & Company or in any other manner, treating all such interests as real estate and charging all the taxes, assessments and expenses connected therewith against the several parcels thereof. As fast as any of my said real estate or interests therein or any parcel thereof shall be sold, either by my executors under the power of sale in this will contained, or by the surviving partners of any firm in which I have been interested, the net proceeds of such sales shall be personal property in the hands of my executors and one-third part thereof shall thereupon be added to and included in the one-third part of my personal estate hereinbefore directed to be set apart and invested for the benefit of my wife during her life and shall on her death be disposed of by my executors for the benefit of her children by adding the same in equal parts to the shares of my personal estate representing them respectively; and the remaining two-thirds thereof shall be added, in equal parts, to the shares of my residuary estate hereinafter directed to be constituted and set apart to represent my four children. Until sold, the income of all said real estate shall, to the extent of one-third part of such net income, be paid to my said wife during her fife, and after her death the
I direct my executors or trustees to add the share representing such child, or so much thereof as may remain unpaid, in equal sums to the shares of my estate, representing my other surviving child or children. I further authorize my executors at any time before the first payment of principal by them to any child to advance out of the share representing any such child to him or her a sum or sums not exceeding fifty thousand dollars in the aggregate, when ever it shall in the judgment of my executors seem judicious and proper that such advance be made, and all such advances shall be charged against and deducted from the share of the child to whom they are made.”
It should be noted that the gift of one-third of the personal estate for the widow’s three children is created in the 7th paragraph by the use of the same words and terms, as did create the gift of the two-thirds of the residuary estate to the decedent’s four children. The 7th paragraph governs both gifts.
Three of the four children of the testator long since attained the age of forty years, one died at the age of twenty-eight years leaving issue surviving, and their trusts in two-thirds of the residuary
The absolute ownership of personal property shall not be sus
“ A future estate is either vested or contingent. It is vested, when there is a person in being, who would have an immediate right to the possession of the property, on the determination of all the intermediate or precedent estates. It is contingent while the person to -whom or the event on which it is limited to take effect remains uncertain.” Real Prop. Law, § 40. It is not the uncertainty of enjoyment in future, but the uncertainty to the right of that enjoyment which marks the difference between a vested and a contingent remainder. An estate is vested when there is an immediate right of present enjoyment, or a present right of future enjoyment. But, though it may be uncertain whether a remainder will ever take effect in possession, it will, nevertheless, be a vested remainder, if the interest is fixed. Thus, we have estates vested in possession, and estates vested in interest. Estates may vest, subject to being divested. Moore v. Littel, 41 N. Y. 66 ; Flanagan v. Staples, 28 App. Div. 319.
The object of the court is to ascertain, not the intention simply, but the expressed intention of the testator, i. e., the intention which the will itself, either expressly or by implication, declares. Matter of Silsby, 229 N. Y. 396, 402.
Assuming there are in the will no direct words of gift to the children, the general rule or canon of construction is that, while there is no present gift, but a direction to trustees to pay or divide at a future time, the vesting in the beneficiary will not take place until that time arrives. But this rule readily yields to exceptions
(1) Where the postponement of the transfer or payment to the beneficiary is for the purpose of letting in an intermediate estate (for instance, the widow’s life estate held in trust). Loder v. Hatfield, 71 N. Y. 92; Matter of Lamb, supra.
(2) Where there are words in the will, aside from the direction to the trustee to pay over, which import a gift vested in interest prior to the time of payment. Manice v. Manice, 43 N. Y. 303; Matter of Crane, 164 id. 71.
In the instant case we have present the first principal exception, the intermediate estate, the gift of the widow’s trust for her life. Then let us look within the four corners of the will for illustrations falling within the second exception, and we find we have present: (a) The gift of the widow’s trust by the terms of the will is to be severed instanter from the general estate. This has been done. The trust was set up according to a decree of the Surrogate’s Court dated February 19, 1892. This illustration is found in Warner v. Durant, 76 N. Y. 133; Fulton Trust Co. v. Phillips, supra, 580. (b) The expressed intention that each beneficiary was to have advanced out of the corpus of his or her share of the estate moneys in the aggregate up to $50,000 at any time prior to arriving at the age of twenty-three years. Everitt v. Everitt, 29 N. Y. 39, 75; Thomas Law of Estates Created by Will, 260; Torrey v. Shaw, 3 Edw. Ch. 356; Goebel v. Wolf, 113 N. Y. 405, 414. (c) The expressed intention that the children should receive the income of their respective shares for their support, maintenance and education during their minority, and when on arriving at majority all accumulated income should be paid to them. Smith v. Edwards, 88 N. Y. 92, 102, 106; Vanderpoel v.Loew, 112 id. 167, 181; Goebel v. Wolf, supra, 415; Steinway v. Steinway, 163 N. Y. 183; 1 Jarman Wills [6th Am. ed.], *802; Fulton Trust Co. v. Phillips, supra; Cammann v. Bailey, 210 N. Y. 19, 31, opinion by Cullen, Ch. J.; Matter of Sackett, 201 App. Div. 51, 61. (d) The expressed intention that the trustees were “ to pay over ” to the
The expressed intention of the testator in his gift of the residence property to the widow in the 2d paragraph of the will, by his use of these words: “ And no part of any such sums shall be charged against the income of my wife, or of any child, or against the principal of the share of any child.” And in his further expressed intention that the net income of the real estate until sold shall be paid to the widow as to one-third thereof and after her death the same shall be paid to her children as hereinafter provided. Thomas Estates Created by Will, 259, 379, and cases cited; Matter of Tienken, supra, 408. (f) That the gift was not to a class (as was the fact in Matter of Leonard, 218 N. Y. 513, 521), but to specifically named living children of the testator. The persons who take are fixed. The testator mentioned the children nominatim. Matter of Ernbree, supra; Clark v. Clark, 23 Misc. Rep. 272; Stevenson v. Lesley, 70 N. Y. 512; Matter of Hicks, 119 Misc. Rep. 6; Roosa v. Harrington, 31 id. 529, 535; Matter of Lotz, 92 id. 683, 688. (g) The expressed intention that so much of the share of any deceased child dying “ before me or after me ” not paid in full is to belong to and vest in the children of such deceased child. Williams v. Boul, 101 App. Div. 593; affd., 184 N. Y. 605; Brussel v. Deitsch, 190 App. Div. 368. (h) The expressed intention in the 5th paragraph that the gift over to the three children is to be, “ On the death of my wife.” These words do not imply as much futurity (Matter of Bostwick, supra) as the words “ after the decease ” and the latter have been expressly held not to prevent a vesting. Matter of Ossman v. Von Roemer, 221 N. Y. 381.
These many tokens of intention here enumerated are interestingly significant and have in combination a cumulative value. It must be conceded that intention is paramount and is the final test. The “ divide and pay over ” rule of construction is merely a canon of construction, must be subsidiary to the intention of the testator as expressed in the will. Whitwell v. Whitwell, 146 App. Div. 270; United States Trust Co. v. Taylor, 193 id. 153, 157; affd., 232 N. Y. 609; Fulton Trust Co. v. Phillips, supra, 582; Matter of Gee, 201 App. Div. 540. A remainder is never contingent if it can be construed as vested. Connelly v. O’Brien, 166 N. Y. 406, 408. The question of vesting is one of intention and the whole will is to be considered in determining the intention of the testator. In Wright v. Wright, 225 N. Y. 329, 336, there were no words or provisions which directly or indirectly would import a present gift, or which indicated such an intent. Clearly that is not our case.
The court believes there is ample language in the will that is susceptible to the construction that will avoid the “ divide and pay over ” rule, and that the will as an entirety better sustains the exceptions than the general rule. Consequently, the instant case is taken out of the rule as to the direction to pay or divide at a future time by the words and provisions importing a present and vested gift. It does not fall within the class of cases cited by the petitioner, such as Hobson v. Hale, 95 N. Y. 588, 610; Dickerson v. Sheehy, supra; Brooklyn Trust Co. v. Phillips, 134 App. Div. 697; affd., 201 N. Y. 561; Lewisohn v. Henry, 179 id. 352; Matter of Wiley, 111 App. Div. 590; revd. on dissent, 188 N. Y. 579; Herzog v. Title Guarantee & Trust Co., 177 id. 86, 89; Schlereth v. Schlereth, 173 id. 444, 450; Central Trust Co. v. Egleston, 185 id. 23, 31; Benedict v. Salmon, 177 App. Div. 385; National Park Bank v. Billings, 144 id. 536.
Then, too, the law favors the vesting of estates, both real and personal, and the presumption is always against intestacy. Matter of Brown, 154 N. Y. 313; Hersee v. Simpson, Id. 496, 500; Davis v. MacMahon, 161 App. Div. 458, 464; affd., 214 N. Y. 614; Stack v. Leberman, 169 App. Div. 92, 94.
Applying the expressed intention of the testator as found in the words and provisions of his testament, and these canons of construction as aids, effect must be given to it, rather than applying the established rule which will defeat such intention. The intention of the testator is reasonably clear. All of the cases recite the rule that the intention of the testator prevails. Robinson v. Martin, 200 N. Y. 159,164; Mullarky v. Sullivan, 136 id. 227, 230, 232; Matter of Buechner, 226 id. 440, 444. A gift over on death or failure of the beneficiary in remainder does not render the remainder any the less vested. Van Brunt v. Van Brunt, 111 N. Y. 178. Nor will the interposition of a trust estate prevent the vesting of a
The 5th paragraph of the will reads: “ On the death of my wife the principal sum * * * shall be disposed of by my executors for the benefit of her children ” (naming them) and the 7th paragraph reads: “ I direct them (the executors) to pay over to such child one equal fifth part of the principal sum representing such child * * These words are to be regarded as indicative of the time of enjoyment of the estate and not of the time of vesting. Connelly v. O’Brien, 166 N. Y. 406; Livingston v. Greene, 52 id. 118; Hersee v. Simpson, supra, 496; Goebel v. Wolf, supra; Campbell v. Stokes, 142 N. Y. 23, 28; Warner v. Durant, 76 id. 133, 136; Bowditch v. Ayrault, 138 id. 222, 230; Matter of Lowerre, 104 Misc. Rep. 570, 578; Gates v. Fisher, 107 id. 53, 56; Matter of Bostwick, supra. It was within the power of the testator to postpone the period at which the estate should vest in possession. Morss v. Allin, 181 App. Div. 79, 81. In the event, however, that the vesting was postponed to the attainment of the age of twenty-three, when the first payment of principal is to be made, it can be said that the three children of the widow lived the stipulated time and longer, within the lifetime of the mother. Matter of Bostwiek, supra. At the termination of the trust, even if the remainder had been contingent, the contingency ceased. Fulton Trust Co. v. Phillips, supra; Matter of Ossman v. Von Roemer, supra, 387. The right was perfect, subject only to be defeated by their dying before receiving their full share.
Even it may be held with authority that the words importing a gift found in the will are words of express gift. Whitwell v. Whitwell, 146 App. Div. 270, 272; Matter of United States Trust Co., 78 Misc. Rep. 227; Matter of Van Kleeck, supra, 44; Matter of Peters, 96 Misc. Rep. 535; Matter of McQueen, 99 id. 185, 192.
It is my opinion that this will shquld be construed as vesting a remainder in equal shares in each child of Emily N. Trevor in the widow’s trust on the death of the testator, the enjoyment of which was, however, postponed until the widow’s death, subject to be defeated by death before receiving his or her full share, in favor of their issue, and subject further to be defeated by death before receiving his or her full share in favor of surviving brothers and
While the court sustains the will upon the theory of vested remainders, let us examine further to ascertain, in the event the estate did not vest in the children, if the contention of the petitioner is sound in law, which is, that the life of the widow in the whole gift, and the life of the child in his or her share of said third part are the two lives in being in each share, with other possible successive life estates to follow. The validity of this Will must be determined, not in the light of what has actually transpired, but from the point of view as to what may transpire at the time of the death of the testator. Matter of Wilcox, 194 N. Y. 288, 294; Mount v. Mount, 108 Misc. Rep. 156, 161.
A portion of the paragraph of the will attacked by the petitioner says: “ In the event of the death of any child of mine before me, or after me, before receiving his, or her share of my estate in full, leaving lawful issue, such issue shall stand in the place of the deceased parent and the share of my estate representing the child who shall have so died shall belong to and vest in the issue of such child so dying.” The testator then provides in respect to any issue being an infant that such interest shall be held during minority and a direction to apply the income to the benefit of such infant, and on reaching majority to pay over the principal of such share, with any accumulation of interest thereon. The petitioner urges that the clause withholding payment to the issue of any deceased child who may be a minor has the effect of postponing the vesting in such issue, and, therefore, creates a suspension for the third life. Where nothing is interposed between a minor and his enjoyment of his estate, except his own minority, the estate is vested, and when the income is given to the minor the gift of immediate income indicates the intention to vest the corpus. Van Brunt v. Van Brunt, 111 N. Y. 178, 186. The use of these words merely postpones the enjoyment of the fund and in no way suspends the ownership thereof. Everett v. Everett, 29 N. Y. 39, 75; Miller v. Gilbert, 144 id. 68; Fulton Trust Co. v. Phillips, supra, 582; 218 N. Y. 573, 582; Cammann v. Bailey, 210 id. 19, 30; Matter of Embree, 9 App. Div. 602, 604; affd., 154 N. Y. 778. In Evans v. Curtis, 103 Misc. Rep. 162, relied upon by the petitioner, the attempted gift for unborn issue was contingent upon their survivorship to the period of distribution.
The petitioner further contends that the will again offends in that portion of paragraph 7 which reads as follows: “In the
The analogy between the case of Hardenbergh v. McCarthy, 130 App. Div. 538, 541 (1909), and the instant case upon this point is perfect. Justice Scott wrote in Simpson v. Trust Company of America, supra, and also in Hardenbergh v. McCarthy, and clearly distinguished the two cases. Justice Scott again wrote in Chastain v. Tilford, 138 App. Div. 746, 754 (1910); affd., sub nom. Chastain v. Dickenson, 201 N. Y. 538, on the question of sub-shares in remainder, and found illegal disposition had been made by the will, but disregarded the void part, saying: “ The effect of exercising this power [deletion] is not to make a new will for the testator, but to sustain the will in its general scope and purpose, and prevent a complete thwarting of the testator’s intention by reason of a minor and unimportant defect.”
In Central Trust Company v. Falck, 177 App. Div. 501 (1917), Justice Scott again wrote upon the subject, on facts being dissimilar to Simpson v. Trust Company of America, supra, and in part presenting the same question which was involved in Chastain v. Tilford, supra. He again found the testamentary intent valid.
And in Wells v. Rowland, 155 App. Div. 354 (1913), strikingly like the Simpson v. Trust Co. case, the court found no objection to the doctrine laid down in Vanderpoel v. Loew, supra. Graham v. Graham, 49 Misc. Rep. 4; Matter of Fidelity Trust Co., 94 id. 533.
The case of Orr v. Orr, supra, is quite like the instant case. The court there held that “ ‘ the share, or portion of the one so dying ’
In Church v. Wilson, 152 App. Div. 844; affd., on opinion below, 209 N. Y. 553, the will directed the sub-share to be held for the third life, but the court cut out the void clause in these-words: “ Hence if the three children of the testator each dies leaving children, there can be no unlawful suspension. The provision for a further life estate causing a further suspension, in case one of the testator’s children dies leaving no child, undoubtedly violates the statute against perpetuities, and cannot be sustained, but that is a contingency which may never happen. Should it happen, its effect would be not to destroy the Seventh clause of the will as a whole but only the limitation beyond the- second life, as to which no valid remainder having been created by the will, there would be intestacy.” Matter of Colegrove, 221 N. Y. 455, of similar tenor.
While the will of the testator in some of its portions may be difficult to interpret, the scheme of the will is simple. The provisions for the widow and children are independent and separable (Kennedy v. Hoy, 105 N. Y. 134; Van Schuyver v. Mulford, 59 id.
If invalidity has crept into this will as claimed by the petitioner, the valid parts of the will can be separated from those that are invalid and the invalid provisions rejected without defeating the intent of the testator to the extent of the valid parts. Kalish v. Kalish, 166 N. Y. 368, 374; Church v. Wilson, supra; Matter of Colegrove, 221 N. Y. 455, 459; Matter of Hitchcock, 222 id. 57, 73; Carrier v. Carrier, 226 id. 114; Matter of Silsby, supra; Matter of Kohler, 231 N. Y. 353; Mount v. Mount, 196 App. Div. 508; affd., 234 N. Y. 568; Matter of Central Union Trust Co., 193 App. Div. 292, 297; Matter of Abbey, 181 id. 395; Matter of Zimmerman, 104 Misc. Rep. 699, 702; affd., 183 App. Div. 939; Matter of Allen, 111 Misc. Rep. 93, 122, 124; affd., 203 App. Div. 860; Matter of Erickson, 113 Misc. Rep. 10,16; Woolley v. Hutchins, 114 id. 11, 22.
The courts have developed two distinct theories to sustain wills like the one in the instant case. The process of the rescue of the good part, either by the theory of vesting, or by the lopping off principle, will preserve the primary life estates for the widow and her children, and in case of a child who has already died, for the benefit of children representing such deceased child to whom such interest was to belong and vest in.
The petitioner concedes that the widow’s trust for her life is valid. Thus far all the parties agree. It, therefore, only remains a debatable question as to where the deletion, if necessary, will begin. The petitioner has commenced to expunge at the end of the first life. The principle of deletion, or the lopping off, he accepts and gives approval. The court has, however, extended the lopping off point to the ulterior limitations, if any such exist. It is plain that the testator did not mean to violate the rule against suspension, because in two places of the will he refers especially to it. In the 7th paragraph, the one attacked by the petitioner, the testator says: “ It being my intention that the absolute ownership of such share of my estate representing any child, or grandchild of mine shall not be suspended, except as hereinbefore specified during the single life of the child whom it represents, and during the minority of any grandchild.” Striking out the reference to the life of the child, and the minority of the grandchild, we have terms of language showing it to be his intention that the absolute ownership shall not be suspended. The petitioner contends that this clause mea,ns
The plan and thought of the testator was to secure to the petitioner by his will the amount this son by a former wife would have received had the decedent died intestate. If identical words of the 7th paragraph carry the gift of two-thirds of the residuary estate, and fail to carry the gift of the one-third of the widow’s trust beyond the life estate of the widow, as the petitioner contends, the petitioner will receive a sum far beyond the division intended and planned by the father. The reason for the unequal gift to the petitioner, the testator’s oldest son by a former wife, is stated in the will of the testator in these words: “ I make this provision respecting the said one-third of my personal estate to be set apart for the benefit of my wife, and after her death for the children of our marriage in view of the fact that my oldest son, Henry G. Trevor is in possession of a separate estate derived from his mother and maternal grandfather.”
The contention of the petitioner that the trusts are so interwoven and blended as to be inseparable; that the testator made a contingent and invalid disposition of his property beyond the widow’s life, and created gifts for lives not in being at his death the court
A decree may be prepared construing the will in accordance with these views, with costs to the attorneys and allowances to the special guardians that will be provided for in the decree upon notice to attorneys appearing.
Decreed accordingly.