186 A.D. 368 | N.Y. App. Div. | 1919
This is an action by the substituted trustee under the last will and testament of Sarah Ann March, who died on' the 25th day of November, 1860, for the construction of and an accounting under said will. The will was duly admitted to probate by the surrogate of the county of Kings and letters testamentary were duly issued thereunder to Richard Sands Tucker as sole executor. The testatrix left her surviving two daughters, Louisa March and Lucy D. Sheafe, and three sons, and three grandchildren, the children of her son Thomas Henry March, who predeceased her, as her only heirs at law and next of kin. "Tucker, the sole executor and
The testatrix by her original will, executed on the 16th day of May, 1850, devised all of her real estate to her eotecutors in trust, with directions to sell and convey the same as soon after her death as a sale and conveyance could conveniently and advantageously be made, and directed that they apply the rents and profits, until a sale, to the use of her daughters during their joint lives in equal proportions, and to the use of the survivor of them; and she bequeathed her personal property to her executors in trust to divide the same into two equal parts and to apply the income of one part to the use of each daughter during life, and directed that her trustees invest and reinvest from time to time the personal property and the proceeds of her real estate and pay over the income thereof to her daughters, but provided that no investment could be made or called without the consent in writing of the daughter entitled to the income thereof. The effect of these provisions was that the personal estate and proceeds of the real estate were to be divided into two equal parts and one held in trust for the use of each daughter during life. By the 4th paragraph of the will she directed that upon the death of either daughter leaving issue, the trustee should assign and transfer to her issue the corpus of which such daughter had the life use; but in the event of the death of
It will thus be seen that by the express provisions of the will the corpus of these trusts was- devised and bequeathed to the executors upon valid trusts and the only gift or devise or bequest of the remainder under the original will was upon the death of the first daughter dying leaving issue in which case the corpus held for her was to be transferred and assigned by the trustees to such issue and on the death of the survivor of the daughters the corpus which immediately before, being the whole or one-half, as the case might be, depending on whether the other daughter left issue, was to be likewise transferred to the heirs of her body, if any, and if not, to the surviving sons or son of the testatrix and the issue of any deceased son; and it is evident that the 4th paragraph of the codicil requires the same construction as to the timé of taking and vesting, for she provided that upon the death of either or both daughters she gave, devised and bequeathed her or their share — meaning the corpus — to her sons or son then living, and in the event that there was no one to take it under these provisions, she provided that upon the death of either or both of the daughters the corpus of the particular trust affected should become vested in her heirs at law and next of kin in the same manner as if she had died intestate. She did not here expressly direct that the trustees should assign or transfer it to her sons or heirs and next of kin, but by the codicil she was merely changing devisees and as she did not expressly cancel the provisions of the original will conferring upon the trustee the duty of assigning and transferring the corpus to the persons entitled to take it, I think that no significance on the point as to whether she deemed that she was disposing of realty or personalty, is to be attached to her failure expressly to direct by the codicil that the trustee assign and transfer the corpus to those entitled to take it and to her having provided that the corpus should upon the death of the life tenant become vested in
After the death of Tucker, the sole executor and trustee, and the death of one of the daughters, the executors of and trustees under the last will of Tucker were duly cited in the Surrogate’s Court in the county of Kings to render an account of the property of the testatrix which came into the hands of Tucker as executor and trustee, and which had come into their possession, and a decree was made settling the accounts and directing distribution on the 14th day of April, 1890. That decree directed the distribution of one-half of the trust fund, other than the Pierrepont street property, which was required to be held during the life of the daughter Louisa March, who had died, as follows: To the surviving daughter one-half thereof and the other half to the two grandchildren of the testatrix who were then living in equal shares, and the executors of Tucker were directed to deposit with the Franklin Trust Company of Brooklyn the other half of the trust fund to the credit of the estate of the testatrix in trust for the benefit of her surviving daughter. The Atlantic Trust Company came into possession of the funds so deposited and of the premises No. 63 Pierrepont street by -virtue of a decree of the Supreme Court made on the 13th day of April, 1891, in the action to which reference nas been made, and the judgment in that action directed that in the event of a sale of the Pierrepont street property with the consent of the surviving fife tenant, the proceeds thereof should be divided
It follows, therefore, that the judgment should be affirmed, with costs.
Clarke, P. J., Dowling, Smith and Merrell, JJ., concurred.
Judgment affirmed, with costs.