123 N.Y.S. 146 | N.Y. App. Div. | 1910
Lead Opinion
The testatrix, Mary J. Martin, died on the 26th of July, 1896, leaving a last will and testament which was duly admitted to probate and letters testamentary issued to the executor and executrix named, who were also appointed trustees. She was survived by seven children—one son, who was an incompetent, and six daughters, all unmarried except the eldest. - In the 2d clause of her will she directed that the proportionate share of the son in her estate should be held in trust for his support during.his life and then continued : “ Upon the death of my said son, I give, devise and bequeath the said share to my unmarried daughters in equal shares.” The son died on the 27th of October, 1908, and at that time all of the daughters were living but only two remained unmarried, three, having married after the death of the testatrix. The trustees were of the opinion that the two daughters who were unmarried .at the time of the death of the son were entitled to the share which had been held in trust for him. This action was brought by one of the daughters who had married intermediate the death of the testatrix and the son, for a construction of this provision of the will, she claiming that under it the share belonged to the five daughters who were unmarried when the testatrix died, and for an accounting. The trial court sustained her contention, and from an interlocutory judgment to this effect, and directing an accounting, this appeal is taken by the two unmarried daughters.
The sole question presented is whether the testatrix intended to give the share held in trust for. the son to the daughters who were unmarried at her death or to those who were unmarried at the death of the son.
It is quite apparent, therefore, that -the testatrix intended to make special provisions for her unmarried daughters, but in this' connection it was urged that since, when the will was executed, the eldest daughter was married to a man of large means, she must have had in mind the five daughters then unmarried and desired to give them, for that reason, a larger proportion of her estate, to the exclusion of the eldest daughter. The other five daughters were then of marriageable age, and any or all of them, so.far as the.testatrix knew,.
This interpretation is not in conflict with any rule of construction, for it has frequently been held that where a distribution is to be made.'among a class it will be confined to persons who answer the description at the time when the distribution is directed to be made: (Matter of Crane, 164 N. Y. 71; Matter of Allen, 151 id. 243; Matter of Baer, 147 id. 348; Delaney v. McCormack, 88 id. 174; Teed v. Morton, supra.) But if it were,, the same result would follow if the conclusion is correct as to the testatrix’s intention. Rules, of construction of wills are for the sole purpose of ascertain-, ing the intention of the testator, and if. that is clearly manifest, it must control. (Roosa v. Harrington, 171 N. Y. 341; Matter of Tienken, 131 id. 391.)
It may be assumed, as contended by the respondent, that upon the death of - the testatrix the remainder vested in the then unmarried daughters, but it was subject to be- divested by their marrying before the death of. the son. (Lyons v. Ostrander, 167 N. Y. 135; Weymann v. Weymann, 82 App. Div. 342; Flanagan v. Staples, 28 id. 319.) Three of them did marry, and by so doing their interest became divested and the same- vested in the two unmarried daughters, who are.entitled to the trust fund.
It follows that the married daughters have no interest in the trust estate. The facts being undisputed and incapable of being
Clarke and Scott, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.
Dissenting Opinion
(dissenting):
I do not concur with Mr. Justice McLaughlin in his disposition of this appeal.
The testatrix executed a last will and testament on the 27th of April, 1894; she then had one so'n unmarried and six daughters, all over twenty-one years of age, except Anna who was nineteen years of age. She was the owner of a house, 27 West Thirty-second street in the city of New York, and' in addition to that had a considerable property, the whole estate amounting to about $500,000. The sou was of feeble mind and unable to care for himself and she evidently wished to provide a home for him and for her unmarried daughters. By the 1st subdivision of the 2d clause of the will, to accomplish this purpose, she expressed her wish that her unmarried daughters, or such of them as desired to live together, with her son, should live in one household, whether at her present home, or elsewhere, and directed her executors and trustees to keep the house 27 West Thirty-second street, New York, in good repair and condition, and to pay any taxes or assessments which might be a charge against the property and to leave in said house the furniture and other property therein at the time of her death for the use of her said unmarried daughters and for her son during the lives of. the two youngest of her daughters who should survive lier, but only so long as any of her daughters remaining single might choose to make it their home, and further directed her executors and trustees to reserve out of her personal estate'a fund not exceeding $20,000, the net income of which should be applied to the payment of the expenses connected with this house.
This clause shows'that the testatrix had in mind the fact that she had unmarried daughters and the contingency of their subsequent marriage. She wished to provide a home for her son and for her unmarried daughters so long as they should remain unmarried, and thus expressly provided that upon the marriage of any of her
I think, therefore, the court below was right, and that the judgment appealed from should be affirmed.
Dowling,. J., concurred.
Judgment reversed, and judgment directed to be entered in accordance with views expressed in the opinion. Settle order on notice.