1 N.Y.S. 914 | N.Y. Sup. Ct. | 1888
This action was brought for the construction of the will of Elizabeth F. Floyd, deceased, and the question arises under the sixth article of the will, which is as follows: “Sixth. I give, devise, and bequeath to my executors hereinafter named all real and mixed estate of which I may die seized or possessed, in trust, nevertheless, to have and to hold the same during the respective lives of my son-in-law, George Thomas Vingut, and my youngest grandchild, Benjamin Van Horne Vingut, now living, and to receive the rents, issues, and profits thereof, and the accumulations arising there.fj'om; and after payment of all taxes, assessments, and of so much money as may be necessary for repairs, insurance, or improvements or betterments of any or all of my real estate, to invest the balance remaining after such payments in productive real estate in the city of Hew York, for the benefit of my grandchildren who may be living at the time of my death, during their respective minorities, and for the benefit of such other grandchildren as may be born of my daughter, Sarah Augusta Vingut, after my death, during their respective minorities. To apply the said rents, issues, and profits of said real estate to the use of my said grandchildren during their respective minorities, in such sum or sums as in the judgment of my executors hereinafter named may be sufficient for the education and support of each or any of them during their respective minorities; but no payment shall be made unless my said executors shall be satisfied that there is not sufficient income from the estate of my said daughter, Sarah Augusta Vingut, for the support and education of my said grandchildren. And on the arrival of my youngest grandchild at the age of twenty-one years, and on the death of my son-in-law, George Thomas Vingut, I give, devise, and bequeath to my grandchildren who may then be living, and their lieirs, forever, all my real estate wheresoever situated of which I shall die seized, or which may be purchased by said executors after my death, as provided for in the sixth clause of this my will, share and share alike, as tenants in common, and not as joint tenants, to have and to hold the same to the said grandchildren and their heirs forever. In the event of the death of any of my said grandchildren leaving lawful issue him or her surviving, then the share of such deceased parent shall belong to and become vested in such lawful issue him or her surviving. In the event of the death of any or either of my said grandchildren unmarried, then the share or shares of such grandchild or grandchildren so dying shall be equally divided, share and share alike, among my remaining grandchildren who may be living at the time of the death of such grandchild or grandchildren. I direct and empower my executors hereinafter named, as my said grandchildren shall respectively attain the age of twenty-one years, and my youngest grandchild and my son-in-law may still be living, to pay over'to each grandchild as he or she may arrive at the age of twenty-one years a proportionate share of the rents, issues, and profits of my estate during the lives of said grandchildren and son-in-law. I
After a careful consideration of the language used in the will, and an earnest endeavor to ascertain what the intention of the testatrix was, I am not at all certain that I have arrived at a conclusion which will be finally supported. It is a cardinal principle in the construction of wills to give effect to the intention of the testator, and in so doing we have the right, and it is our duty, to subordinate the language to the intention, and to give effect to its plain and definite purposes, and when they are endangered by inapt or inaccurate modes of expression, the court may reject words and limitations, supply them or transpose them, to get at their correct meaning. Phillips v. Davies, 92 N. Y 199. But there is another rule of construction applicable to.cases of this description, which is that where it can be done without violence to the intention of the testator, that the one of two possible constructions will be given to a clause that will sustain the intended devise, rather than the one that will defeat it. There seem to be, upon the face of the clause in question, two absolutely different and inconsistent intentions; and the problem which is presented in the construction of this clause is to ascertain whether a legal intention can be spelled out from the terms and expressions used in the will. There seem to be inconsistent intentions as to the operation of the trust, and also inconsistent intentions as to the accumulations of income. It does not seem possible to reconcile these antagonistic provisions of the will, and it is therefore necessarily difficult to ascertain what the real intention of the testatrix was. It is to be observed that the testatrix gave, devised, and bequeathed to her executors all her real and personal estate in trust, to have and to hold the same during the respective lives of her son-in-law and youngest grandchild living, naming them. The trustees were to receive the rents, issues, and profits and the accumulations arising therefrom, and, after the payment of all taxes, assessments, and repairs, insurance, improvements, and betterments, they were required to invest the balance remaining after s uch payments in productive real estate in the city of Hew York, for the benefit of her grandchildren who might be living at the time of her death, during their respective minorities, and for the benefit of such other grandchildren as might be born after her death during their respective minorities. Here seems to be expressed an intention to create a trust during the life-time of her son-in-law and her youngest grandchild then living, whereby her estate should be accumulated during the minority of all her grandchildren then living, as well as during the minority of her grandchildren who should be born subsequently to her death. In this clause of the will there seems to be an evident intent that the trust should exist, at least as to some part of the estate, during the minority of any child who should be born of the testatrix’s daughter after her death, provided the testatrix’s son-in-law and the grandchild named in the will, or either of them, should be then living. The trustees are then directed to apply the rents, issues, and profits of the real estate,—evidently referring to that which was devised, and also that which might be purchased out of the income thereof,—to the use of her said grandchildren during their respective minorities, in such sum or sums as might be sufficient for the education of each of them for their respective minorities. ■ The grandchildren evidently are those in existence at the time of the death of the testatrix and which should be born after her decease. The testatrix then provides that no payment should be made unless her executors should be satisfied that there is not sufficient income from the estate of her daughter for the support and education of her said grandchildren. The testatrix then on the arrival of her youngest grandchild' at the age of 21, and on the death of her son-in-law, gave, devised, and bequeathed to her grandchildren who might then be living, and their heirs, forever, all her real estate wheresoever situate of which she might
It is urged, however, that even under this construction the accumulations directed by the sixth article are void, not being for the purposes permitted by the statute; that the statute only permits accumulations during the minority of the infant for the sole benefit of the infant, and to be paid over to the infant at majority; and that such is not the scheme of accumulation devised by this will; but that this scheme is to accumulate the rents and profits during the minorities of the respective infants, not for the benefit of these infants respectively, but to be divided not necessarily between those infants, but only among such of them as should be living at the remote period of the coming of age of the youngest grandchild intended in the third clause of article 6, and the issue of such of them as should previous to that have died, leaving issue. And such might be the intention of the testatrix if we only construed that part of sixth clause of the will to which attention has been particularly directed. But
Beady and Daniels, JJ., concurring.