179 N.Y. 386 | NY | 1904
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I entertain no doubt as to the correctness of the judgment in this case. It is not reasonably possible, upon the reading of this will, to say that the testamentary scheme is not manifest. It is clear that the testator purposed, in the event of his son's death, that all of the residuary estate, of which he was disposing, should go to his next of kin; a description which, in the event of his having descendants, should be restricted to them; as he, specifically, directs in the eleventh clause. The event that has happened is the death of his son, childless, before that of either of testator's brother or sisters; for whom the trust funds in question were created. This fact furnishes the basis for the appellant's argument that the situation, which, actually, arose, has not been provided for. In effect, it is argued that there is no express gift, and none can be implied, of the three trust funds in the event which has happened and, hence, as to so much of his residuary estate, the testator has died intestate. It is true, of course, that the particular event, which has happened, is not described in the will and that we may infer that the testator did not suppose that his son would fail to survive the older lives; but that will not suffice to defeat the evident testamentary scheme. This is not like the cases, to which the appellant refers us and which Vernon v. Vernon,
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We might hold, from the irresistible evidence of the testator's intention, that there was a gift by implication, of the trust estates as they fell in; or, perhaps more correctly, that the direction in the seventh and ninth clauses was not an essential condition of a right in the next of kin to take and that the prior death of the son, merely, accelerated the vesting of the estates in the members of that class.
For these reasons, I advise the affirmance of the judgment. Under the circumstances I think no costs should be awarded.
CULLEN, Ch. J., O'BRIEN, MARTIN and WERNER, JJ., concur; BARTLETT and VANN, JJ., not voting.
Judgment affirmed. *393