29 A.D. 229 | N.Y. App. Div. | 1898
We might very well base our affirmance of the judgment appealed from upon the very satisfactory opinion of the court below ;
Applying this principle to the will in question, it seems to us to be clear that it was the intention of the testator to give an absolute interest in his estate to his sons Herman and Henry, subject to his wife’s life interest. It appears from the instrument itself that the testator intended to make for his sons Herman and Henry a larger pro
If the construction claimed by the appellants is to be put upon this will, then, in case either Herman or Henry died during the continn
The judgment should be affirmed, with costs.
Barrett, Romsey, Ingraham and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.
The following is the opinion of the court below :
Russell, J.:
Upon this application to the court for the construction of the will of Gerhard H. Karstens, the main controversy arises between the plaintiff, who is a son of the deceased and his sole surviving executor and trustee, and the defendant Catharine Karstens, who is the widow of another son, Herman Karstens, deceased. That question is whether Catharine Karstens takes the portion which would have been the share of her husband, Herman Karstens, if he had lived, or whether that share goes to the plaintiff as the sole surviving son of the testator.
The material parts of the will are here quoted. The wife, Catharine, who is therein referred to as having been the surviving wife of the testator and the mother of the four sons, died in the year 1894:
“ Third. I give, devise and bequeath unto my trustees, hereinafter mentioned, all the real, leasehold and personal estate which I may die seized and possessed of, or in any way entitled to, and wheresoever the same may be situated at the time of my decease.
“To have and to hold the same unto them and the survivors of them, to, for and upon the following uses,-trusts, intents and purposes, and to and for no other-use, trust, intent or purpose, that is to say, in trust in the first place to take possession and charge of my said real, leasehold and personal estate, to rent out my said real and leasehold estate, and invest the same and keep invested my said personal estate, upon good and sufficient security, and pay over the rents, profits, interest and income of my said estate after first deducting therefrom all taxes, assessments, insurance, repairs and other legal necessary payments and expenses, unto my beloved wife Catharine for and during her natural life.
“In trust in the second place, upon the decease of my said wife, to divide my said estate into three equal parts, and to pay over unto my sons, Herman ICarstens and Henry ICarstens, each one equal part or share thereof, to have and to hold the same unto them, respectively, their and each of their heirs and assigns forever, and to invest and keep invested on bond and mortgage upon good and sufficient real estate, in the cities of New York or Brooklyn, one equal-part or share thereof, and to keep the same so invested during the natural life of my sons, John ICarstens and Albert ICarstens, and to pay over and divide, the interest and income thereof equally between my said sons, John ICarstens and Albert ICarstens, and in trust in the last place upon the decease of them, and each of them, leaving issue him or them surviving to pay over unto said issue the parent’s part or share, and if more -than one issue then in equal proportions.
“ Lastly. I do hereby nominate and appoint my said wife, Catharine, the executrix of, and my friend, Ernest C. Korner, the executor of, this my last will and testament, and also my son, Henry, as executor thereof, when he shall have arrived at lawful age, and I do constitute my said wife and the said Ernest 0. Korner, and the survivor of them, trustees and trustee under this my will, and also my said son, Henry, an additional trustee, when he shall have arrived at lawful age, for all and every of the trusts, purposes and provisions herein expressed and declared; and I do hereby authorize and empower them, and the
It is conceded that the son, Herman Karstens, died August 12, 1891, about three years before the death of his mother, so that he never came into the possession and enjoyment of any share of his father’s estate. It has been also satisfactorily proven upon the trial that Albert died three years before the death of Herman, at the Soldiers’ Home, at Washington, though passing under the name of James Welch. Ho argument has been made upon the proofs by either counsel, or authorities cited, with reference to the presumptions as to the death of John Karstens. But, as the facts as to the probability of his death have been proven, I am obliged to pass upon that question as it is material in this case. The testator, John’s father, died in the year 1869. John must have known about the property which he left and the provisions of the will for his benefit upon the death of his mother, and must be presumed to have been possessed of the natural expectations incident to such prospect. He left the home of his mother more than twenty years before the trial, and thereafter but little was heard about him, the last that any member of the family had any information of his whereabouts or life being in 1883. Thus, though impelled, if living, by the strong and controlling motives to make- himself known, of affection, family ties and hope of gain in pecuniary advantage, he is silent for fourteen years or more, which silence would presumably not have continued in view of the interests drawing him to his brothers and mother, and old home, and the property in which he had a contingent interest, if he was alive. Under such circumstances we may fairly presume him to have died, and such view is sustained by the authorities.
In the case of Davie v. Briggs (97 U. S. 628) absence of seven years was deemed sufficient (see p. 633). (See, also, the following cases where different periods under the circumstances were held sufficient for a presumption of death: Clark v. Owens, 18 N. Y. 434; Sheldon v. Ferris, 45 Barb. 124; King v. Paddock, 18 Johns. 141.)
The theory is also sustained by kindred legislative action. (Code Civ. Proc. § 841; Penal Code, § 299.)
No information was ever received of the marriage of John Karstens; no claimant has ever appeared as his wife or child or descendant, and we may reasonably infer that the same motives of pecuniary interest, if not of the ties of affinity, would have actuated an;r person who might claim through John Karstens to
We may, therefore, consider the plaintiff, Henry Karstens, and his sister-in-law, Catharine Karstens, as the sole surviving claimants to the estate, although the plaintiff’s counsel, in his supplemental memorandum, for the first time expresses some doubt as to the proof of the death of John Karstens. He seems to have acted upon a different theory in framing his cause of action, for he did not name John Karstens as a party, although he would have had an interest if living.
The argument of the plaintiff’s counsel, seeking to gain for his client the whole of the estate to the exclusion of his brother’s widow, is that the provision for the sons contained in the will was for the benefit of a class, and that the death of either before the mother’s death carried his portion into intestacy, because the provision for the benefit of all the sons vested no estate in any of them until the death of the mother, in distinction to the case where the vesting took place upon the death of the testator, and the right of enjoyment merely was deferred.
It is undoubtedly the rule that where the testator plainly makes no gift to his beneficiaries, hut provides for their enjoyment of a portion of his estate on the happening of a contingency, such beneficiaries do not take a vested interest upon the death of the testator. {Shipman v. Rollins, 98 N. Y. 311; Smith v. Edwards, 88 id. 92.) But this is a rule to which resort must only he had in the absence of any signification of a contrary intent indicated by the testator, and where such a different intent is manifest from the will the vesting takes place at once upon the death of the testator, however long the enjoyment may he postponed. {Matter of Young, 145 N. Y. 535; Goebel v. Wolf, 113 id. 405; Warner v. Durant, 76 id. 133.)
And in the very case cited of Smith v. Edwards {supra), relied upon b)' plaintiff's counsel, where the Court oí Appeals held that the postponing of the vesting of the estate, as to a large part of the property affected, rendered parts of the will invalid as unduly suspending the power of alienation, it still held that another clause, giving to each grandchild born within twenty 3rears, and before the final settlement, of the estate, the sum of 81,000, to he paid to each on reaching lull age, or if a granddaughter, upon her marriage, did not unduly suspend the absolute ownership and that the bequests were valid.
It is necessary, therefore, to scrutinize the terms of the will in order to deter
The true construction of this will is that Herman and Henry received a vested interest upon the death of their father, the testator, the enjoyment thereof being postponed until the death of their mother; and so Catharine, now succeeding to the interest of her deceased husband by his will, and Henry take the two-thirds of the estate by force of the will. By the deaths of John and Albert the one-third reserved for their use goes into intestacy. Henry and Herman having survived their father they had a vested reversion in the interests of John and Albert, and the interest of Herman was lawfully passed by him though his will to his wife Catharine, so that both Henry and Catharine are tenants in common of the entire estate.
I assume from the proof and the pleadings so far that there has been no sale of the realty; nor do I see from their ownership any necessity of the trustee’s selling that real estate and dividing the same. Unquestionably he has the power to do so, and unless counsel for Catharine have objections to his selling the real estate and dividing the proceeds, with a division of the personal estate, it is perhaps better that this should be done to save the possible expenses of partition. Such a direction will be incorporated in the judgment herein unless objection be made; and if the defendant Catharine does object, this question will be farther considered by the court. Let the proper decision and judgment be drawn and served, with notice of settlement.