109 N.Y.S. 182 | N.Y. App. Div. | 1908
On the 2d of -May, 1898, Jacob Gottgen died, leaving him surviving three daughters, Justine G. Scheel, Louise Ammann and Clara Strodtmann. At the time of Ms death he was seized of five parcels of real estate in the city of Hew York. He left. a will by which he gave to each daughter, under certain conditions, one of these parcels and the other two he disposed of by the reside nary clause. The daughter Clara lias-since died, leaving her surviving her husband, Henry F. Strodtmann, the respondent.above named.. She left a will, by which she gave to him all the interest which she had under the residuary clause of her father’s will. The
The appeal presents but a single question, i. e., whether the learned justice sitting'at Special Term correctly construed the residuary clause of the will of the testator and the item immediately following. The residuary clause reads as follows: “All the rest,' residue and remainder of my estate, real and personal, of every nature and kind whatsoever, including any lapsed devises or legacies, I give, devise and bequeath to my executors and the survivor of them and their successors, in trust for the following uses and purposes:
“ a. Until the expiration of the term of twenty years after my decease, or until the death of my daughters Louisa
“b. To collect and receive the interest, rents, issues and profits from my said residuary estate so devised' to them and after paying
“ c. On the expiration of said term of twenty years, or upon the death of the survivor of my said two daughters, Louisa Ammann and Justine Scheei, which
What the testator intended by this clause of liis-will is apparent. He desired his residuary estate to be held in trust for a term of twenty years, or during the joint lives of his daughters Justine and . Louise, and the in come therefrom to be collected by the trustees named during this period and divided in equal proportions among his three daughters, and at the expiration of twenty years, or upon the. death of the survivor of the two daughters Justine and Louise, lie desired that the residuary estate should go to the three daughters, or their representatives, in equal proportions. Had the will stopped here there could not, by'any possibility, have been any question as to what he desired to accomplish. The apparent difficulty is in reconciling this clause with the itém which immediately follows it, and which reads:
“ Item. In the event, of the death of any of my said daughters before the expiration or termination of the trust as hereinafter provided, leaving issue her surviving, I give, devise and bequeath to the children of each of the daughters so dying an equal -undivided third of iriy said residuary estate, the issue of any deceased child taking the share which the parent would have taken if living at the death of said daughter, and in case any of my said daughters shall die before, the termination of said trust, .without leaving issue her surviving, then I give, devise and bequeath one-third of said resid.uary estate to such person or persons and in such, shares and proportions as such, daughter shall by her last will and testament devise and appoint.”
When this item is read in connection with the residuary clause, it
It is true that in default of issue slightly different words are used, but when the whole item is read together, it seems to me the testator intended that the issue — or in default of issue, the person appointed — should be treated the same — either to be substituted for and take the place of the daughter.
This view is strengthened when other portions of the will are considered. The testator had, as we have already seen, five pieces of real estate. He gave each child one parcel, but the absolute power of alienation in each case was suspended for a period of ten years, unless the daughter to whom the parcel was given should die before
The authorities cited by the respondents are not in point. In those cases, or nearly all of them, it was held that separate trusts were created for the purpose of saving the trust- in the will and not destroying it. Here, fo'hold that separate trusts were created, one for the benefit of each child, is to destroy the manifest purpose of the testator, which was to keep the property tied up at least for twenty years,.or during the lives of his two daughters Justine, and Louise. '
Hor is there force in the suggestion that this construction would be invalid because the income of one-third of the trust estate is undisposed of. The respondent Strodt'mann takes the interest m the trust estate which his wife would have taken had she lived. ' It. isa gift in remainder of one undivided third of the residuary estate, subject to the precedent trust estate which suspends the power of alienation during the trust term. Hence the income of such one-third goes, under the statute, to him as owner of the next eventual estate. (See Real Prop. Law [Laws of 1806, chap. 547], § 53.)
My conclusion, therefore, is that the property- passing under the residuary clause of this will is to be held in trust for a period of twenty years, or during the lives of the two daughters Justine and Louise; that the respondent Strodtmann takes the interest in such •trust estate which his wife would have taken had - she lived ; that the title to her interest vests in him, but he is not entitled to the possession until the termination of the trust. ' .
The-judgment appealed from, therefore, should be reversed and a new trial ordered, with costs- to all parties separately appearing payable out of the estate.
Patterson, P. J., Laughlin, Houghton and. Scott, JJ.., concurred.
Judgment reversed, new trial ordered, costs to’ all parties separately appearing payable out of the estate.
Louise,
Sic.