152 A.D. 522 | N.Y. App. Div. | 1912
The following is the opinion of the referee:
This is an action for an accounting by the trustees under the will of Louis C. Hamersley and for a distribution of his estate. The issues .presented call for a construction of certain provisions of the will. The testator died on the 3d day of May, 1883.
Their contention is that by the clause “ to the male issue of my cousin J. Hooker Hamersley then living and to the male issué of such of them as shall have previously died leaving-issue,” the testator intended to provide not only for male issue of J. Hooker Hamersley living at the death of the life tenant but also for the after-born male issue of female issue, since the gift was to male issue of those who had died leaving- issue either
It may be conceded that, if the expressed intention of the testator was as claimed by the heirs and next of kin, the rule against perpetuities was violated, and, since the shares of such unborn issue were indefinite and unascertainable, the entire gift to the male issue of J. Hooker Hamersley would be invalid, and the estate would descend as in case of intestacy. But in my opinion that is not the construction of the clause in question which should be adopted. It seems to me that the testator intended that, if he should die without issue, his estate should vest, upon the death of his widow, in the then living sons of J. Hooker Hamersley and in the issue of any deceased son or sons, the latter taking by representation.’
Before proceeding to state the reasons which I think necessarily lead to this conclusion it may be proper to recall certain general principles which apply in determining the validity of wills. One of these is that the validity of a will- depends, not on what has happened since the death of the testator, but on what might have happened.
Although J. Hooker Hamersley left no female issue of deceased issue, yet the validity of the will, tested by the rule against perpetuities, is to be determined precisely as though that contingency had occurred. In testing the validity of the provisions of a. will by the rule against perpetuities, it is not enough that the limitation may not violate the rule; it must be apparent that it cannot. The law regards possibilities, and future estates must be so limited that in every possible contingency they will vest within the prescribed limitation. (Matter of Wilcox, 194 N. Y. 288, 295; Purdy v. Hayt, 92 id. 451; Herzog v. Title Guarantee & Trust Co., 177 id. 86, 99.) We are to remember also that the court must first construe the will for. the purpose of ascertaining the expressed intention of the testator and then test its validity as so construed by the
Bearing these rules in mind we proceed to an examination of the language of the will. The word “issue,” when used in a will and unexplained by the context, has the meaning of descendants of every degree of- remoteness (Schmidt v. Jewett, 195 N. Y. 486; Soper v. Brown, 136 id. 244; Drake v. Drake, 134 id. 220; Chwatal v. Schreiner, 148 id. 683), and when employed in that sense, descendants of every degree of remoteness take in equal shares per capita and not per stirpes. (Soper v. Brown, supra; Hillen v. Iselin, 144 N. Y. 365; Phelps v. Cameron, 109 App. Div. 798.) But the word “issue” may be and frequently is explained by the context so as to bear the restricted sense of “children.” (2 Jarman Wills, 949; Palmer v. Horn, 84 N. Y. 516; Chwatal v. Schreiner, 148 id. 683; Matter of Tenney, 104 App. Div. 290; Emmet v. Emmet, 67 id, 185.) That it was so used in the first clause of the paragraph under discussion appears from a consideration of the entire sentence. If the testator intended to use the word “ issue ” in the clause “to the male issue of my cousin J. Hooker Hamersley then living ” in its broad sense, then he included in that clause sons, grandsons and male issue of every degree living at the death of his widow. This would necessarily include male issue of those of them who had previously died leaving male: issue. When, therefore, he added the clause “ and to the 'male issue of such of them as shall have previously died leaving issue,” he must have had in mind certain of the very persons who would have been provided for in the first clause if he there used the word “ issue ” in its extended meaning, and he must be understood as intending to provide for such persons in the added clause, as well as to provide that they should take by representation instead of per capita. It follows that he did not intend to use the words “ male, issue ” in the 1st clause With such an extended meaning as to include
It thus appears that the purpose of the 1st clause was to provide for the sons of J. Hooker Hamersley living at the death of the widow, and that the purpose of the 2d clause was to provide for the male issue of deceased sons, and also to secure that they should take by representation.
We next inquire when the gift to the male issue of deceased sons was limited to take effect, first looking at the character of the gift generally and then at the particular language in which it was expressed.'
Since, at the time the will was made and at the time the testator died, J. Hooker Hamersley was unmarried, the gift to his male issue was to persons not then in existence. It was, therefore, a future estate, and, since it was dependent upon the precedent life estate to the wife, it was a contingent remainder. (1 R. S. 723, §§ 10, 11, 13; Real Prop. Law, §§ 37, 38, 40.)
In Gilliam v. Guaranty Trust Co. (186 N. Y. 127) it is said: “The general rule * * * is well established that when property at a future date is to pass to a certain class of persons it will be distributed amongst the persons who compose such class at the date, of distribution.” The intention of the testator, however, is to prevail, and, if he expressed a purpose that other persons than those in being at the death of the life tenant were to share in. the estate, effect must be given to that intention. '
We are thus brought to the inquiry whether the language of the will requires a finding that the testator intended that issue born at an indefinite period after the death of the life ten
It is claimed that the testator in using the words “leaving issue ” meant leaving female as well as male issue, and that, if the latter clause be read as it then properly might be read, “ and to the male issue of such of them as shall have died leaving female issue,” the male issue of such female issue might come into existence after the death of the widow, and hence we must conclude that in that contingency the testator intended to make a gift to after-born male issue of such female descendants whenever such issue should come into existence. But that is not the only intention which can properly be drawn from such a reading of the words “leaving issue,” for it is possible that sons of J. Hooker Hamersley might have died before the life tenant leaving daughters whose sons were living at the death of the life tenant. And, if the bequest should be regarded as limited to such male issue, effect would be given to the words “leaving issue” construed as the heirs and next of kin claim that they should be construed, and no violation of the rule against perpetuities would result. In that event male issue would include male descendants through females, a construction which has been adopted by the courts of other States (Wistar v. Scott, 105 Penn. St. 200; Wistar v. Gillilan, 4 Atl. Rep. 815; Oddie v. Woodford, 3 Mylne & C. 584; Beckham v. De Saussure, 9 S. C. 546), and hot disapproved in this State (Wilson v. Wilson, 76 App. Div. 232).
I am of the opinion, however, that the words “leaving
The heirs and next of kin also attach great importance to the fact that the words “then living” were employed in the 1st clause but do not appear in the 2d, a circumstance from which they argue that the testator must have intended that the limitation of the gift to take effect upon the death of the wife in the first instance was not to apply to the gift to the male issue in the 2d clause. But it does not seem to me that great importance should be attached to this circumstance. A gift on the death of a life tenant to the living sons of a person and to the issue of deceased sons would, in accordance with established rules, vest on the death of the life tenant in the sons and issue of sons then in existence. The use of the words “then living” do not seem to me to have been employed for the purpose of making a distinction in the time when the gifts were to vest, but rather in the designation of the two classes that were to take; that is, living sons and issue of deceased sons.
In the case of Cox v. Wisner (43 App. Div. 591; affd., 167 N. Y. 579) the language of the will under construction was very similar to that we are considering. The devise was to the eldest son, but in case the son should die before the decease of testator’s wife without lawful issue living at the time of his death then the property ‘ to go, upon the decease of my said wife, to such of my children as shall then be living, and the lawful issue of such as may then be dead, equally (taking by repre-. sentation) as tenants in common.” The question was whether
It will be observed that there the gift was to a living child and to the descendants of such living child. If it had been as here to the descendants of a child who had previously died, a different situation would have been presented, for then the natural construction would have been that the testator intended that the estate should pass to the descendants of the deceased child at the same time, and with the same effect, as to the living child; but an unqualified gift to a living person and to the descendants of such living person takes in all descendants, and no implication can properly be resorted to to limit the line of descent to the period when the living person is to take. The opinion in that case presents and discusses this distinction (p. 568). The case is, therefore, not an authority in point. Reference is also made to Foster v. Sutton, unreported. I have read the findings and opinion of the referee in that case. The question there presented would arise in this case if a son of a deceased son of J. Hooker Hamersley had died before the life tenant, leaving a will, and a legatee -under such will were claiming to share in the estate. It is not necessary to express an opinion as to the correctness of the decision in that case. So far as it furnishes an analogy in the use of the words ‘ ‘ then living ” if seems to be inconsistent with the ruling in Cox v. Wisner (supra). Nor does the case of Dougherty v. Thompson (27 Misc. Rep. 738) seem to me to have any direct relation to the question now before the court. Matter of Crane (36 App. Div. 468; revd., 164 N. Y. 71) is also cited by the hems at law and next of kin in this connec
I am also referred to a large number of cases in which it has been held that, in determining whether an interest vests at the death of the testator or is contingent, the words “ on and after,” “ then ” and on the death of ” and like expressions are ordinarily construed as indicating the period at which the interest is to vest in possession or enjoyment, and do not control in determining whether a remainder is vested or contingent at the death of the testator. Here the remainder is concededly contingent. In determining the period when it is to take effect, expressions such as those above referred to indicating that the termination of the precedent estate is the event upon which the interests of the remaindermen vest are to be considered, but with due regard to any indications in the will of a different intent.
Both parties seek to derive support for their contentions in the final clause of the will giving the testator’s widow a power of appointment in favor of charities. The language of the will is as follows: “ In the event, however, my said cousin shall die without leaving male issue him surviving or surviving my wife, then on the decease of my wife I give, devise and bequeath the whole of my said estate, real and personal, to such charitable and benevolent corporations located in the State of New York and incorporated by virtue of the laws thereof and in' such shares and proportions as my dear wife shall by her last will and testament or instrument in writing for that purpose made and executed and acknowledged by her, direct, designate and appoint. ” Since J. Hooker Hamersley left him surviving the infant defendant Louis Gordon Hamersley, who was born during the life of the life tenant, and since the wife never exercised the power of appointment given to her in the will, this substitutionary provision became wholly ineffectual. It is referred to by the parties merely for the purpose of- assisting
None of the particular words or expressions to which attention has been drawn disclose to my mind a purpose on the part of the testator that any share of his estate should pass to persons unborn at the death of his widow.
The dominant intention of the testator was to provide first of all for his wife and afterward, if no issue of his survived her, for the male issue of his cousin, J. Hooker Hamersley, but he did not intend to provide for all the possible male issue of his cousin. Concededly the male issue of his sons who were living at the death of his wife would share in his estate, but none of their descendants were to share.' Why then should he have made a distinction in favor of the after-born issue of daughters or granddaughters of his sons ? If he had intended to make such a distinction would it not be natural to expect that he would have done so in clear and direct language ? “ The law favors the vesting of estates as soon as possible after the testator’s death, and a will in doubtful cases is to be construed accordingly; still the question is one of intent.” (Williams v. Jones, 166 N. Y. 522, 539; Stokes v. Weston, 142 id. 433;
Moreover, if the testator meant that male issue bom to female issue after the death of his wife were to share in his estate, it would be natural that some provision for the security and protection of the shares of such unborn persons should be made. Counsel for some of the hens have argued from the words of survivorship among the trustees of the trust for the wife, of whom she was one, that the trust was to survive her and was to continue for the purpose of carrying over the share of unborn issue until the contingency of birth occurred. But nothing can be more certain than that the trust was tb cease upon the death of the wife for whose maintenance and support it was created. If the testator intended to provide for such unborn issue he must have contemplated that their shares would pass on the death of his wife to his heirs at law and next of kin or to the other issue. His estate consisted of personal property as well as of real estate.' If, after a period more or less remote, such after-born issue came into existence, they would be left to recover their scattered shares as best they might. I do not think that the language of the will justifies a finding that such was the intention of the testator. The expressed intention of the testator as I gather it from the language of the will was that, in the event that he left no issue who survived his wife, then, on her decease, the estate should pass to the living sons of his cousin, J. Hooker Hamersley, and to the living male issue of such of them as had previously died. Under this construction of the will the entire estate passes to Louis Gordon Hamersley.
See Consol. Laws, chap. 50 (Laws of 1909, chap. 52), §§ 37, 38, 40; Gen. Laws, chap. 46 (Laws of 1896, chap. 547), §§ 27, 28, 30.—[Rep.