51 N.Y.S. 538 | N.Y. App. Div. | 1898
The question submitted here depends upon the construction to be given to the sixth clause of the will of William H. Montanye, deceased. By that clause the testator vests the residue of his estate in his executors in trust, which trust is to continue during the lifetime of his wife,—the trustees to receive the rents, issues, and profits; and, after paying the expenses of administration, the testator directs to be paid, from such rents, issues, and profits, certain sums to his widow and children. The provision as to his daughter Carrie, the plaintiff’s intestate, is as follows:
“And to my daughter Carrie Jelliff the sum of twenty ($20) dollars per week, to be paid to her weekly during the lifetime of my said wife; and also to permit her to have the free use and occupancy of the premises where she now resides, at three hundred and twenty East One Hundred and Fiftieth street, in said city of New York, until the final distribution of my estate: provided, however, that should my said daughter renew her relations with her husband, Charles Jelliff, or live with him, or be divorced, and again marry, then it is my will and I do order my said executors and executrices to stop and cease the payment of the said weekly income herein provided for her, and also to stop and revoke the permission granted for the free use and occupancy of the residence herein provided for my said daughter, and I direct the said weekly income of twenty dollars per week to be paid to my said wife, Mary Elizabeth Montanye, weekly, during the term of her natural life. And, should either of my daughters or sisters die without issue during the lifetime of my said wife, then and in such case I direct my said executor and executrices, or the survivor and survivors of them, to 'pay such deceased child’s or sister’s share of the income of my said estate, together with all the rest and residue of the rents, issues, interests, and income of my said estate, to my said wife, Mary Elizabeth Montanye, in quarterly yearly payments, during the term of her natural life.”
By the eighth clause of the will it is provided that upon the death of his wife this trust estate should be divided among his children, or descendants of any deceased child, except the share allotted to his daughter Carrie Jelliff, which was to be retained by the executors, as trustees, in trust for her, and upon her death to •divide the same among her children.
It seems that on the 6th day of March, 1896, and during the life of the testator’s widow, the plaintiff’s daughter Carrie Jelliff died, without ever having renewed her relations with her husband, or without having married again. The said Carrie Jelliff left, her ■surviving, her husband and three infant children. She died intestate, and letters of administration were issued to the plaintiff. The questions submitted are:
First. “Is the administrator of the estate of Carrie M. Jelliff entitled to twenty dollars per week from the trustees of the estate of William H. Montanye, deceased, from the date of the death of Carrie M. Jelliff, during the continuance of the trust estate?” Second. “Is the said administrator entitled to the use of the house 320 East 150th street, New York City, during the continuance of the said trust estate?”
“To my sister, Julia E. Montanye, the sum of three hundred and twenty (£320) dollars per year, to be paid to her quarterly during the term of her natural life, and to my daughter Carrie .Tolliff the sum of twenty (£20) dollars per week, to be paid to her weekly during the lifetime of my said wife.”
From this language it is apparent that the testator made a dis-. tinction between the annuity to be paid to his sister, which was to cease upon her death, and the annuity to his daughter, which was to continue during the lifetime of his wife; and the general clause at the end of the paragraph in question provided that, should this daughter die without issue during the lifetime of his wife, the trustees were -to pay this share of the income of his said estate, during the term of her natural life. Thus, the direction was to pay this weekly annuity to his daughter during the lifetime of the wife, unless she should renew her relations with her husband, marry again, or die without issue during the lifetime of his wife, in which case this annuity was to be paid to his wife. She died during the lifetime of his wife, but leaving issue, and thus the contingency upon which the annuity reserved for his daughter Carrie was to be paid to his wife upon the death of Carrie without leaving issue has not happened. There is nothing in the eighth clause of the will to indicate a contrary intention. If his daughter Cande survived his wife, it was the intention of the testator to provide that her share
Judgment should be directed upon the submission in favor of the plaintiff, as administrator, against the defendants, as trustees, as prayed for by the plaintiff; but, as each party to this submission waives costs as against the other, there seems to be no reason for refusing, to enforce this stipulation, and the judgment is without costs. Judgment is directed accordingly. All concur.
I concur with Mr. Justice INGRAHAM in the conclusion he reaches as to the payment of §20 a week, for the reasons given in his opinion. I also concur with his conclusion that the administrator is entitled to the use and occupation of the house until the final distribution of the estate. The will gives to Carrie Jelliff the use and occupation of the premises where she resides until the final distribution of the testator’s estate. The law is well settled that a devise of use and occupation of land passes an estate in land, and consequently something more than a mere personal right to occupy it. 1 Jarm. Wills (Bigelow’s Ed.) 795; Rabbeth v. Squire, 19 Beav. 70. This estate given to Carrie Jelliff, being a chattel real, passed to her administrator after her death. 3 Redf. Wills, 142 et seq.