26 A.D. 12 | N.Y. App. Div. | 1898
Lead Opinion
I concur in so much of the opinion of Mr. Justice Rumsey as relates to the construction of the deed of trust and the extent of the interests acquired by the eestuis que trust thereunder; but I am not able to concur in the views expressed by. him concerning the personal property that passed under the will of Paran Stevens. The difference between the provisions of the deed and those of the will is striking. In the deed there are no present words of graht to the children of Paran Stevens; under the will the bequest was distinctly to them after the life estate in their mother. The words used in the deed annex futurity to the grant; those used in the will indicate a present gift. Upon the decease of the testator’s wife, the personal property, he declares, “ shall belong to my children, the descendants of any deceased child to take the share their parent would have taken, if living.” It is not and cannot be claimed that, if the provision ended there, there would not be an absolute vested remainder in the three children of the testator in equal parts. But the will proceeds to provide as follows: “ And if no descendants of mine survive my said wife, then said property shall belong and be delivered over by my executors to the same persons named as residuary legatees in case of such failure of descendants in the next clause of this will and in the same proportions.”
The effect of this gift over is not to postpone the vesting in interest of the remainders created by the express words of the gift, limited upon the particular estate. It is unnecessary to go further than the statute to determine that the remainders vested. They so vest (1 R. S. 723 § 13) when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing
There is nothing in the will nor in the surrounding circumstances, so far as we are able to judge from this record, that prevented the vesting of these remainders. They were subject to be divested, all or none. The divesting never has occurred and never can occur, and Henry Leiden Stevens’ share in the personal property passed under his will.
I, therefore, think that the judgment should be modified, with reference to the personal property.
Barrett and O’Brien, JJ., concurred.; Van Brunt, P. J., and Rumsey, J., dissented from the modification of the judgment.
This action was brought for the partition of certain property, and after issue had been joined it was referred to a referee to hear and determine. After the trial by the referee an interlocutory judgment was entered fixing the shares of the property to be partitioned to which each of the respective parties to the action was entitled and directing a sale. After the entry of that . judgment this motion for a new trial was made pursuant to the .authority of section 1001 of the Code of Civil Procedure. Before proceeding to the examination of the questions presented by this record it is proper to call attention to what we conceive to he a serious error in practice into which the parties have fallen. The action was referred to a referee
The action was brought to partition not only certain real estate situate in the State of New York, hut also other real estate in the State of Rhode Island, and certain personal property. The real estate in the State of Rhode Island , was by consent withdrawn from the purview of the action, and no judgment was had concerning it, the only property which is now involved in the litigation being the real estate in this city and the personal property. The real estate
The deed contains no grant to the children of Paran Stevens. Their only right to the property arises from the direction contained in the deed that the trustee shall convey to the children of Paran Stevens in fee. The deed, then, is .to be. construed in accordance with the rule that, where final distribution is to be made among a
The action was brought not only for the partition of this real estate, but for the division of certain personal property which Paran Stevens had bequeathed to his wife for her life, and to certain of his children after her death. The question presented is practically the same as that presented upon the construction of the deed, although it arises in a different manner and upon a consideration of an entirely different phraseology and requires separate examination. By the 3d and 4th clauses of his will Paran Stevens gave to his wife, Marietta Stevens, for her life, certain personal property which is the subject of this action. At the time of his death he left three children, one of whom, Henry Leiden • Stevens, died before the death of Marietta Stevens, as stated above. The will provided as follows: “ Upon the decease of my said wife, the property by this and the preceding clause devised, shall belong to my children, the descendants of any deceased child to take the share their parent would have taken if living; and, if no descendants of mine survive my said wife, then said property shall belong and be delivered over by my executors to the same persons named as residuary legatees in case of such failure of descendants, in the next clause of this will, and in the same proportions.” The words “ shall belong ” in this bequest operate as a direct gift to the children of Paran Stevens. The presumption in such cases is that the testator intends that such a gift shall take effect either in enjoyment or interest at the date of his death, and such words will be construed as relating to the time of his death unless a contrary intention appears. (Nelson v. Russell, 135 N. Y. 137.) The effect of this bequest, therefore, would be to give an indefeasible vested remainder in the personal property to each one of the children of Paran Stevens who answered that description at the time of his death, unless a con
It has been said that the words, “ shall belong ” indicate an intention to- give. This undoubtedly is the case, but at the same time it is worthy of notice that, where the testator makes an immediate gift to take effect in interest at the time of his death, he uses the usual words “ give and bequeath; ” but where he makes a gift which is not to take effect at that time, but subsequently, and upon the failure of a life estate, he usds the Words shall belong ” or “ are to belong.” It may not be of "any- particular importance, and yet the use of the
The result is that the motion for a new trial should be • denied, with costs to the defendant Melcher.
Concurrence Opinion
I concur. It seems to me that it is perfectly plain that the testator intended by his will to confer upon his children a vested remainder, subject to be divested by death during the continuance ■of the intermediate estate.
Motion for new trial denied and interlocutory judgment modified "by adjudging that the legatees under the will of Henry Leiden ■Stevens took one undivided third in the personal property mentioned in the 3d and 4th clauses of the will of Paran Stevens, being the share which said Henry Leiden Stevens would have taken if he had survived the life tenant, with costs to all parties to be paid out of the fund.