15 Abb. N. Cas. 123 | N.Y. Sup. Ct. | 1884
This was an action for the construction of the will of Robert S. Phelps, deceased. The will was executed on the 14th day of July, 1881. By the first clause the testator gave to James W. Manier 250 shares of Susquehanna Valley bankstock in lieu of all claims for fees as executor of his will. By the second, he gave to Lizzie, Freddy and Frank Smith each the sum of $10,000. By the third, he gave to Andrew Jackson, $2,000. The fourth clause provided that if he should die leaving any child or children, the remainder of his estate should be equally divided between his wife and such child or children, share and share alike ; but not to be divided until the youngest child should arrive at the age of twenty-one years, his wife to have the income, except that each child was to receive the income of his or her share upon arriving at the age of twenty-one years. The fifth clause was as follows: “Fifth, in case I shall die leaving no child or children, and no child of my body shall be born after my death, then I give, devise and bequeath the use and income of all my said remaining property and estate to my wife Hattie S. Phelps during her natural life, and at hér decease, I give, devise, and bequeath all. my said remaining property and estate to the children of Norman Phelps, of Binghamton, N. Y., the children of John 0. Phelps, of Wilkesbarre, Pa., and to Horace Phelps of Scranton, Pa., said remaining estate and property, to be divided between said Horace Phelps and each of said children, share and share alike. The bequests in this will to my wife are intended to be and are given to her in full satisfaction and recompense of and for the dower and thirds which she may be entitled to out of my estate.” The testator’s wife -and James W. Manier were, by the sixth clause, ap
The testator died December 14, 1881, leaving no child, and none was afterward born. He left a widow, but no parents, brothers, sisters, nephews or nieces. His will was duly admitted to probate April 20, 1882, and letters testamentary were duly issued to James W. Manier and Hattie S. Phelps as executor and executrix of said will, who thereupon duly qualified as such, and entered upon their duties. His widow accepted under the provisions of said will in lieu of her dower or any interest in said estate, and receive the use and income of the residuary estate during her life. Horace Phelps died November 19, 1881, which was after the making of this will, and before the testator’s death. The testator was present at his death. The widow died October 5, 1882. Norman Phelps had three children, and John 0. Phelps five children, when this will was made, all of whom are still living.
The following questions are involved in this action, and arise under the fifth and sixth clauses of the will. 1. Did the share in the residuary estate which Horace Phelps would have taken had he survived the testator vest in the surviving residuary legatees upon the testator’s death, or did it pass to the testator’s heirs or next of kin, as property undisposed of by the will ? 2. If to his heirs and next of kin, was such share one-ninth or one-third of such residuary estate ? 3. If to the heirs and next of kin, did the widow become entitled to the share of the personal estate so bequeathed ? 4. Do the children of Norman and John C. Phelps take each an equal share in said residuary estate ; or do the three children of Norman take one-half, and the five children of JohnO. the other half ? 5. Is the
The first and most important question in this case is, did the share in the residuary estate which Horace Phelps would have taken had he survived the testator, vest in the residuary legatees living at the testator’s death, or did it pass to the testator’s heirs and next of k,in as property undisposed of by the will \ It seems to be well settled that if the devise and bequest to Horace Phelps has lapsed that it must be treated as property undisposed of by the will, and that as to such portion of the estate the testator died intestate (Vernon v. Vernon, 53 N. Y. 352; Warring v. Warring, 17 Barb. 552 ; Floyd v. Barker, 1 Paige, 480). None of the parties controvert this proposition. The general rule is also clear that if the legatee dies béfore the testator, the legacy lapses, because the will, not taking effect until the death of the testator, it can communicate no benefit to the persons who previously die (1 Jarm. on Wills [5th Ed. Bigel.] 338).
To this rule there are, however, exceptions, which are as well settled as the rule itself. "One of them is, where the devise or bequest is to a plurality of persons as joint tenants. In such a case no lapse can occur unless all the objects die in the testator’s lifetime, because, as.it has been expressed, “ each is a taker of the whole, but not wholly and solely,” and any of them existing when the will takes effect will be entitled to the entire property (1 Jarm. on Wills, 341). It is not, and I apprehend it cannot be, successfully contended in this case that the gift to the residuary devisees and legatees mentioned in this will was to them as joint tenants. The devise and bequest is to Horace and each of said children share and share alike. This con-
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Another exception to the foregoing rule is, where a devise or bequest is given to a class of persons as tenants in common. In such case, those of the class described, who survive the testator, are admitted to be the exclusive objects of the gift; or, to state the exception in the language of an eminent text-writer: “ Where the devise or bequest embraces a fluctuating class of persons, who by the rules of construction are to be ascertained at the death of the testator or at a subsequent period, the decease of any of such persons during the testator’s life will occasion no lapse or hiatus in the disposition, even though the devisees or legatees are made tenants in common, since members of the class antecedently dying are not actual objects of the gift ” {1 Jarm. on Wills, 341; Downing v. Marshall, 23 N. Y. 366, 373, 374; Teed v. Morton, 60 N. Y. 502, 506 ; In re Coleman & Jarrom, L. R. 4 Ch. Div. 165, 169).
It is contended by the surviving residuary legatees and devisees, that the residuary devise and bequest, given by the fifth clause of this will, was to a fluctuating class of persons, to be ascertained at the death of the testator, and hence there was no lapse of the share of the residuary estate given to Horace Phelps, but that they only were the objects of the gift. This contention is challenged by the heirs-at-law and next of kin of the testator, and also by the personal representative of the deceased widow. It seems to be admitted by all the parties to this controversy, that if this gift had been to the children of Norman Phelps, or to the children of Norman Phelps and to the children of John C. Phelps, it would have been a gift to a class, and within the exception above stated. But the heirs-at-law, next of kin and representative of the widow, insist
In Jarm. on Wills a distinction is made between the word “ class ” when used in a popular sense, and when, used in a legal one. It is there said : “A number of persons are popularly said to form a class when they can be designated by some general name, as children, grandchildren, nephews; but in legal language the question whether a gift is one to a class, depends not upon the consideration, but on the mode, of the gift, namely, that it is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal, or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons.” The distinction between the word “class,” when used in its popular sense and when used in its legal sense, is illustrated by the author as follows : “Thus a bequest of one thousand pounds to the children of A.
In Porter v. Fox, 6 Sim. 485, where among the bequests there was one to the testator’s grandchildren, and to his nephew Thomas Owen, to be distributed as they should become of the age of twenty-five years, it was held, that the grandchildren and nephew constituted a class. In Shaw v. McMahon, 4 Dr. & W. 431, where the gift was to be divided in equal parts amongst all the children of the testator living at his death, including his sons Beresford and William, and by a codicil the gift to William was revoked, it was he id, that the gift was to a class, and the other residuary legatees took the whole.
In Clark v. Phillips, 17 Jur. 836, where there was a bequest of the residue to the children of A., to the children of B., to C., to the children of B. and to E., in equal shares, and the testator, by a codicil, revoked the gift to C. and to the children of A. with a declaration that they should not be residuary-legatees, it was held that the gift of the residue was to the residuary legatees as a class, notwithstanding that some of the individuals to take were named, and that the effect of the will and codicil taken together was to give all the residue to the legatees whose bequests were not revoked. In delivering the opinion in that case the Vice-Chancellor said : “Upon principle I cannot decide that certain individuals being named to take with a
In re Stanhope’s Trusts, 27 Beav. 201, where a testator having five daughters gave a legacy to one, and the residue to the remaining four byname, and their issue, but he afterwards directed that any subsequently born daughters and their issue should be entitled to equal shares with the four daughters, and one of the four died without issue in the life of the testator, it was held, that there was no intestacy, that the daughters took as a class, and that those who survived took the whole. The Master of Rolls in that case says : “A person may make a bequest to a class, as to the daughters of A. and to the daughters of B., and he may add any other person to. them, making together one class.”
In Aspinall v. Duckworth 35 Beav. 307, where a testator bequeathed a fund to his nephew A., and to the children of his late sister B., as tenants in common, but in case any die before the testator, leaving issue, his share was not to lapse, but to go to his executors as part of his personal estate, and three of the children of B., died before the testator and left no issue, held, that the gift was to a class, and there was no lapse, but that the whole went to the other members
In Chester v. Phillips, 36 L. T. 500, where a husband bequeathed his personal estate to his wife for life, and after her death,“ to be divided among my heirs and to their children, with H. R. P., share and share alike,” and the testator had five brothers and sisters, some of whom died in his lifetime, leaving issue, others survived him and died in the lifetime of their mother, leaving issue, it was held, that by the word heirs was meant next of kin exclusively of the widow ; that it was a gift to a class, to be ascertained at the testator’s death, and consisting of the brothers and sisters living at the death of testator, the children of brothers and sisters then dead, and H. R. P., and that these persons took vested interests.
In Shiers v. Ashworth, L. R., 25 Ch. Div. 162, there was a bequest of the residue “in trust for my son George, my daughters Lydia, Mary Ann, Alice, and Frances, and such of my child or children, if any, hereafter to be born, as shall attain the age of twenty-one years or marry, in equal shares, as tenants in common.” The testator had six children only, the five named and one other, all of whom had attained twenty-one at the date of the will. Of the named children two died in the testator’s life time, without
In Drakeford v. Drakeford, 33 Beav. 43, where a testator bequeathed .his funded property to Ms widow for life, and afterwards to his brother for life, and then to be equally divided amongst his brother’s surviving legitimate children “ and my niece R. W.,” it was held, that the survivorship had reference to the death of the brother only, and that this was not a gift to a class, because a class must be ascertained at one and the same time.
In the case ol In re Chaplin’s Trust, 12 Weekly Rep. 147, the gift was of a residue equally between “ all and every the children of my late cousins A. and B., as shall be living at the time of my decease, C. D. E. and F.,” the named persons being cousins of the testator. C. having died in the testator’s lifetime, it was held that C.’s share lapsed. In that case it wrns said by Wood, Vice-Chancellor, “A gift to a class was a gift to a set of persons, all filling one common character, or holding some definite position, and a gift to a number of residuary legatees did not thereby constitute them a class.”
In the case of Wilson v. Atter, 44 L. T. N. S. 240, where there was a gift in a will equally among all the
In Sheirs v. Ashworth {above), the case of In re Chaplin’s Trust is referred to, and the judge says: “ Sir William Page Wood in In re Chaplin’s Trust in sub-, stance referred to a class by what may be called the more or less scientific definition, that is to say, not the definition which is usually adopted in the cases at law upon the subjectIn 1 Jarm. on Wills, 269, note N, the case of In re Chaplin’s Trust is also referred to, and it is there said “It was admitted by Wood, Y. C., that naming some of a class did not make it less a class, yet he held that the named person having died before the testator Ms share lapsed, which seems contradictory.”
The authorities cited are all that have come to my notice which bear upon this question. It seems to me that the great weight of authority is to the effect that where there is a devise or bequest to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, and who are all to take in equal
If I am correct in the determination of this first question, then it becomes unnecessary to determine either the second or third questions presented, as both of those questions were based upon the supposition that it might be held that the share given to Horace Phelps passed to the testator’s heirs and next of kin as property undisposed of by the will.
This brings us to a question whether the children of Norman and John 0. Phelps take an equal share in
The only remaining question is, whether the plaintiff, as the sole surviving executor of the testator’s will, is invested with power to sell and convey real estate which belonged to the testator and distribute the avails among the residuary legatees.
■ The power given by this will to sell real estate was a general power in trust (Bussell v. Russell, 36 N. Y. 581). A power in trust ceases with the termination of the purpose for which it was given (Bruner v. Meigs, 64 N. Y. 506, 507,517). The statute is to the same effect (3 R. S. [7th ed.] 2183, 2191, §§ 67, 102). Hence, it becomes necessary to ascertain whether the power given by this will was a general one, to be executed for any purpose connected with the management or distribution of the testator’s estate, or whether it was given for some special purpose which has been accomplished or terminated. The testator, by his will, gave his executors “ full power to sell and convey any part or all of his real and personal property, and to reinvest the proceeds thereof in such manner as they might think to be for the best interest of his estate.”
It may be contended that this power was a limited one; that its purpose and object was to enable the executors to sell real estate for the purpose of reinvesting the proceeds to better advantage during the continuance of the life estate of the widow, so that if any of the testator’s real estate should become unremunerative, or any other emergency should arise, making it desirable, and for the best interest of the estate, to sell
From these considerations it follows that the plaintiff is entitled to judgment, adjudging that the share of the residuary estate which was given to Horace Phelps, vested in the surviving residuary legatees upon the testator’s death ; that the children of Norman and John C. Phelps each take one-eighth of said residuary estate ; and that the plaintiff, as surviving executor, is invested with power to sell the real estate of the testator for any purpose necessary for the proper management and distribution of the testator’s estate, with costs to all the parties, payable out of such residuary estate.
In Koch’s Estate (N. Y. Surr. Ct. Feb. 1885) it was held, that under Code Civ. Pro. § 2748, providing that distributive shares, legacies, &c. not paid to the person entitled, within two years after decree, shall be paid to the county treasurer, the decree should not, direct such payment to the county treasurer when it is uncertain to whom the legacy or share belongs. Thus, where a residuary legacy was “ to my brothers and sisters now living, and the descendants of any deceased brothers or sisters,”—Held, not proper to direct payment to a sister who was not known to be living, nor known to have been living at the testator’s death ; but an inquiry must first be made as to when she died, and whether she left descendants surviving at testator’s death.
Decree for distribution.
The facts sufficiently appear in the opinion.
Rollins, S. It is provided by section 2748 of the Code of Civil Procedure that a decree for distribution of the assets of a decedent’s estate shall “direct the executor or administrator to pay to the county treasurer a legacy or distributive share which is not paid to the person entitled thereto at the expiration óf two years from the time when the decree is made, or when the legacy or distributive share is payable by the terms of the decree.
Though the direction for inserting this provision in decrees of distribution is ih terms one of universal application, such insertion is generally of no practical importance, and, in most cases, may with
The executor of this decedent suggests its adoption in the decree about to be entered in the case at bar. These are the facts:
The fourth clause in decedent’s will is in words following: “I give all the rest, residue and remainder of my estate unto my brothers and sisters now living, and the descendants of any deceased brothers or sisters.” Now, the decedent once had a sister named Anna K. Koch. Whether she is now living or dead, and whether she was alive when the testator died, or had predeceased him without leaving descendants her surviving, are questions whose answers are admittedly involved in doubt. It is manifestly improper, therefore, to enter such a decree as the executor proposes—viz., a decree directing payment to Anna K. Koch herself of the one-eleventh share to which decedent’s brothers and sisters are respectively entitled, and further directing the payment of that sum to the Chamberlain (as the County Treasurer of New York County), in the event that after two years shall have elapsed, said sum shall not have been already paid to Anna K. Koch. It is justly claimed by counsel for certain of the legatees that such a provision involves the unwarranted assumption that Anna K. Koch is the “person entitled ” to the legacy in question, whereas it may be ascertained upon inquiry that she died childless in the testator’s lifetime, and that her brothers and sisters who survived the testator, and the descendants of her brothers and sisters who did not, are themselves the “ persons entitled” to the share that would, under other circumstances, have been hers.
Before I direct any disposition of that share, therefore, an inquiry must be instituted into the circumstances that are supposed to justify the presumption of Anna K. Koch’s death, and the belief that she left no descendants who were living at the death of the testator. A reference will be ordered for taking proof upon these questions.