28 Barb. 564 | N.Y. Sup. Ct. | 1858
Lead Opinion
I think the construction of the will of Samuel Parsons by the supreme court of errors of Connecticut is the true construction, and that of the surrogate of the county of New York erroneous.
The testator, a resident of the state of Connecticut, and domiciled there, made his will in that state, and died there October 14, 1848, leaving a widow and four children, one son and three daughters, all minors at the time of his death; and an estate valued at about $147,000, a portion of which consisted of a leasehold interest in two houses and lots in the city of New York, valued at about $18,000; six shares of the stock of an insurance company in New York; and promissory notes against persons and firms in the city of New York, amounting to about $34,000. The testator, by his will, dated the 7th day of October, 1848, after giving and devising to his wife his homestead, with the furniture, books, carriages, &c., and a piano-forte to his daughter Catharine, and an annuity of $700 to his wife, to be paid to her by his executors out of his estate, until her decease or marriage; gives and devises all the residue of his estate to his executors, named in the will, (David Lyman, the appellant, and his wife¿) in trust; two-fifth parts thereof for the sole use and benefit of his son Joseph H. Parsons, and his heirs and assigns for ever; and the remaining three-fifth parts for the sole use and benefit of his daughters, Catharine, Elizabeth and Caroline, in equal shares to them respectively, and their respective heirs and assigns for ever. The testator then declares how and in what manner the trustees are to apply and dispose of the trust fund for the use and benefit of his children and their issue.
It is very plain that the testator intended that the bulk of his estate, real as well as personal, should be converted into money, and invested and kept together by his trustees as one fund; and that out of the same, and its accruing interest or income, the trustees should from time to time pay the annuity to the widow; the sums deemed expedient for the support and education of the children during their minority ; and as they severally attained the age of 21, to each a certain other sum; and after that to pay over the residue of the fund or estate in their hands, with its accruing income, to the children and their issue in certain periodical payments; and in a certain manner, with certain discretionary powers, given to • the trustees; specified in the will with wonderful precision of language.
The direction, with regard to those payments for the support and education of the children during their minority, and to them and their issue on their attaining their majority, and afterwards so carefully given in the will, may be considered, and is a declaration by the testator of the manner in which he intended them to be benefited by his estate, and by his previous direct bequest and devise thereof to his executors in trust for theii' Mse and benefit.
The testator did not intend that his children should have the interest or income of the fund, and the benefits and payments specifically directed by him in addition; but he intended the interest of income of the fund to be added to the principal, and to be kept together, and that out of this fund,
If there is any unlawful accumulation, or suspense of the absolute power of alienation, directed by the will, or involved in its provisions, it is for the courts in Connecticut to say so. The testator lived there; made his will there; died there; and this whole trust estate is to be considered as converted into money under the power of sale, and invested by his trustees living there. The will is to be carried into effect, and the rights of parties beneficially interested under it are to be determined according to the laws of that state. The testator violated no law of this state in making his will, and none need be violated in carrying it out.
It is very clear that the surrogate of New York was led to his construction of the will by too close attention to the particular clause of the gift and devise to the executors in trust for the use and benefit of the children, their heirs, &c., without paying sufficient attention to the subsequent provisions of the will, qualifying and explaining this use and benefit, and showing the testator’s intention.
If the construction of the will was called for by the proceeding before the surrogate of New York, I think, therefore, his construction was erroneous, and that the parts of his decree founded thereon, declaring that the biennial payments directed in the will to be paid to the children of the testator, are applicable alone to the principal or corpus of the estate, and declaring that the children are entitled to, and that the executors distribute the net income of their shares from the time of the testator’s decease, should be reversed.
The interest of the children in their unpaid shares can hardly be said to be vested; for, on the death of a child, his or her share remaining unpaid, would go to the surviving children,
For reasons which will be very briefly stated, I also think that part of the decree of the surrogate of New York adjudging and decreeing that the appellant should account to said surrogate for the assets realized by him from persons and firms residing in the city of. New York, and paid to the appellant before letters testamentary were granted by the said surrogate, was equally erroneous and should be reversed.
I suppose it would be correct to say that the title to all the personal property or movables of the testator, wherever situated, vests in his executor on his death, by virtue of the appointment in the will, rather than by the probate of the will and the granting of letters testamentary. (Schultz v, Pulver, 11 Wend. 363. Valentine v. Jackson, 9 id. 303. 1 Wms, on Ex’rs, 239.)
The probate and granting of letters testamentary is a municipal regulation for the purpose of furnishing authenticated evidence of the title of the executor and of his right to assert and enforce it. But one state cannot make a rule or regulation of evidence for the courts and authorities of another state; and therefore whether letters testamentary granted in Connecticut shall be evidence of the executor’s title and rights in New York, depends upon the laws of New York. But as this question of evidence cannot arise except, in some suit or legal proceeding by or against the executor for enforcing or attempting to enforce his right and title, I must confess I cannot see how it can arise in the case of a voluntary payment to a foreign executor, the party paying the money taking upon himself the risk of the title of the executor and of his right to receive payment. In this case, it appears that about $34,000 of the estate of the testator consisted of promissory notes of persons and firms residing in the city of New York'; that all of these notes were deposited by the executors in the Merchants’ Bank of the City of New York, and in the Middlesex County Bank in Connecticut, and that they were all volunta
In my opinion it is clear, both on principle and authority, that the surrogate of Hew York had no jurisdiction whatever over the moneys thus voluntarily paid to the appellant by the Hew York debtors previous to the granting of letters testamentary by said surrogate. ( Vroom v. Van Horne, 10 Paige, 556, 557, and authorities cited by the chancellor in that case. Selectmen of Boston v. Boylston, 2 Mass. B. 384.) It is true that .it is perfectly well settled that the executors of Samuel Parsons could not have maintained a suit in this state by virtue of the letters testanientary granted in Connecticut. (McNamara v. Dwyer, 7 Paige, 243. Schultz v. Pulver, supra.) But it appears equally well settled that the will was to be interpreted, and the personal estate of the deceased was to be disposed of and distributed, according to the laws of the coun
Whether the trustees under the will have discretionary power to pay to the testator’s son, Joseph H. Parsons, out of the trust funds in their hands, at and after his having attained the age of 25 years, $20,000 biennally until- his entire share shall have been paid off, is a question, I think, for the court of Connecticut, where the fund is.
It is very clear, for reasons before stated, that the part of the surrogate’s decree declaring that the trustees have this discretionary power to pay him $20,000 biennally out of the principal of his share, as distinguished from the income, ordered to be paid over to the children by the appellant, is erroneous and should be reversed.
In my opinion, all those parts and portions of the decree of the surrogate appealed from by David Lyman should be reversed.
Davies, P. J., concurred.
Dissenting Opinion
After a very minute examination of the facts and principles involved in this case, I entirely concur with the surrogate in the conclusions at which he has arrived on the two questions presented to him.
I. The executor having submitted himself to the jurisdiction of the surrogate of this county, must account to him in relation to all matters connected with his duties, and his accountability, as executor. The power of the offic.er is not partial or fragmentary; but, in order to be effectual, must embrace every thing necessary to the perfect administration of the estate. Whatever might have been the motive of the executor in applying for letters testamentary here, or whatever necessity might have impelled him. to apply, the surrogate cannot inquire, as
II. The surrogate, then, having the power to compel a complete accounting, he can determine the manner of the accounting, and the principles by which it is to be governed, only by the laws of our own state. If they are in conflict with the laws of any other jurisdiction, within which the property involved is placed, or before whom the executor might have previously accounted, it is not for the surrogate to apply the remedy.
In the beginning of the bequest, the whole estate is given absolutely for the sole use and benefit of his son and daughters, their heirs and assigns for ever. There is nothing inconsistent with this absolute gift in the subsequent clauses of the will. It is indeed, as to each legatee, liable to be divested, in case he should die before the payment of the share. But we know that the prior devise or bequest “ must not be disturbed further than is absolutely necessary for the purpose of giving effect to the posterior qualifying disposition.” It was very different in'the case of Chrystie v. Phyfe, in which I maintained that the prior words of absolute inheritance were nullified by the posterior qualifying words. The subsequent limitations in that case provided that if Miss Mackaness should die unmarried without leaving lawful issue, the estate should go to her sisters, their heirs and assigns for ever. If she should die leaving lawful issue, then to such child or children, his, her or their heirs and assigns for ever; and in case she should die without lawful issue, and if at her death, her sisters should not be living, the will provided that the estate should go to
In the case before us, notwithstanding a similar apparent repugnancy, the intent of the testator can also be deduced from the whole scope and purport of the will; but the intent is dissimilar from that deducible in the other cases. The portions treated of are invariably called the shares of the legatees, vested in and belonging to them, and to be paid to them, and to be given over only in case of death before payment. The payments are to be made, in some respect, according to the discretion of the executors; but it was evidently intended by the testator, that the time of payment should not be arbitrarily protracted. They are cautioned not “ to use unnecessary delay in making ultimate payment” of the share of each daughter. Now, although, as we have seen, the mere employment of the ordinary technical words of inheritance, does not peremptorily and positively import a fee, or absolute ownership, in defiance of subsequent words of qualification and limitation ; yet, if in addition to the words of inheritance, there is enough in the whole tenor and language of the will, to show that the testator intended that the whole property in the bequest should vest in the legatee, and not a mere life or usufructuary interest, then it is a safe rule, that the effect of the subsequent words shall be countervailed and the prior words
Devies, Clerke and Suthland, Justices.]
The surrogate’s decree should be affirmed, with costs.
Decree reversed.