53 N.Y.S. 633 | N.Y. Sup. Ct. | 1898
The plaintiff is the sole surviving trustee under ■ the last will and testament of Henry B. Gibson, and brings this ac
“ Third. I give and bequeath to, and hereby request and direct my executors hereinafter named, as soon after my decease as may be, to assign and transfer to Watts Sherman, of the city of New York, .and Henry L. Lansing and John G. Sibley, of the city of Buffalo, trustees hereby nominated and appointed by me, all the promissory notes, and all the bonds not secured by mortgage on real estate, against individuals, or against any town or county in the State of New York, not in suit, which I shall, own at the time of my death; 'and, in addition thereto, the following stocks, bonds and notes, at their par value, to-wit,— twenty-four thousand six hundred and fifty dollars in the capital stock of the Buffalo & State' Line Railroad Company, sixty thousand dollars in the capital stock of the New York Central Railroad Company, twenty thousand dollars in the capital stock of the Rochester City Bank, five thousand dollars in the bonds of the Buffalo & State Line Railroad Company, five thousand dollars in the bonds of the Hudson River Railroad Company, twenty thousand dollars in United States six per cent, coupon bonds,, known as five-twenties, fifty thousand dollars in six per cent, bonds of the New York Central Railroad Company, eight thousand dollars in seven per cent, bonds, of the New York Central Railroad Company,, one thousand two hundred dollars in seven per cent, bonds of the New York City, Buffalo & Erie Railroad Company, twenty-five thousand dollars in six per cent.. bonds of the State of Michigan, twenty-five thousand dollars in seven per cent, bonds of the Erie & Pittsburgh Railroad Company, ten'thousand dollars in seven per cent, bonds of the city of Milwaukee, and ten thousand dollars in seven and three-tenths (7,3-10) per cent. United States Treasury notes — making two. hundred and sixty-three thousand eight hundred and fifty dollars in said stocks, bonds and notes, par ■ value, ánd in addition thereto
Watts S. Sherman, one of the trustees, died in 1865, and John C. Sibley, another of the trustees, was removed and the plaintiff was appointed a trustee in his place with the same powers and duties, by a judgment of this court, on the 2d day of July, 1873. Henry L. Lansing, the other trustee named in the will, died on the 29th ‘day of September, 1889. Ho trustee was appointed in place of those who died. The executors assigned and delivered to the trustees property of the value of $450,000, and the trustees divided the same into three equal shares and paid the income to the testator’s daughters as directed in this clause of the will. The testator’s daughters, Sarah M. and Mary F., died many years ago and the two shares so held by the trustees for them have long since been distributed and the trustees’ accounts therefor have been judicially settled. The testator’s daughter, Catharine O. Lansing, died on the 19th day of August, 1896, leaving her surviving only two children, the defendants Livingston and Watts S. Lansing. The defendants William Watts Sherman, Henry G. Sherman, Richard R. Gibson, Catharine O. Lapham and Louis II. Gibson are other grandchildren of the testator who survived his daughter Catharine O. Lansing. The defendant Josephine E. Gibson was born in 1871, and is the daughter of Henrietta J. Gibson and John S. Gibson who was a son of the testator. She was bom out of wedlock, but her parents were lawfully married three years thereafter, and from that time on until her father’s death, in 1891, lived together as husband' and wife, and recognized Josephine as their lawful issue, bringing her up with their other children born to them in lawful wedlock, one of whom is the defendant Louis H. Gibson. Josephine claims a proportionate share of this fund as a granddaughter of the testator. Her right to take is contested by the representatives of some of the other grandchildren.
For the same reason illegitimate children will not be deemed included in the terms “ children ” or “ grandchildren,” when used in a will unless the testator’s intention to include them otherwise clearly appears. Collins v. Hoxie, 9 Paige 81; Gelston v. Shields, 16 Hun, 143; 78 N. Y. 275.
Josephine was not born until eleven years after the testator died and, of course, having no knowledge of the unfortunate circumstances attending her birth, as might be expected, under such circumstances, he made no provision for illegitimate grandchildren.
By section 18 of chapter 48 of the General Laws, being chapter 272 of the Laws of 1896, which became of force on April 17th of that year, it is provided as follows: “An illegitimate child,'whose parents have heretofore intermarried, or shall hereafter intermarry,' shall thereby become legitimatized and shall be considered legitimate for all purposes, entitled to all the rights and privileges of a legitimate child; but an estate or interest vested before the marriage of the parents of such child shall not be divested or affected by reason of such child being legitimatized.”
There have been so many fine distinctions in the construction of wills on the question as to when a remainder is vested or contingent that much time would be occupied, and, I think, without profit, in an endeavor .to analyze and reconcile them.
When the will was drawn, and at the time of the testator’s death, Catharine 0. Lansing was forty-five years of age and had five children living. There are no words of. present gift to the grandchildren. The fund is bequeathed to and vested in the trustees for the purposes specified. Upon the death of his daughter he says, •“ then I give and bequeath ” said fund “ to all the surviving children (if four, or more) of such deceased daughter,” and if less than four “ then I give and bequeath ” $37,500 to each of her surviving children, and the residue “ I give and bequeath to all my grandchildren then living, including the child or children of such deceased daughter, in equal shares.” There was no certainty until the death of Catharine 0. Lansing that the grandchildren would take any share of this fund, for that depended upon the uncertain event of their surviving her and of her leaving less than four children. I see no theory upon which any interest in the fund could vest in the grandchildren until after the death of two of Catharine 0..
Whether the grandchildren were to take could only be determined by the facts existing at the death of Catharine O. Lansing. At the time of her death Josephine had been legitimated by the statute quoted, and was a lawful grandchild of the testator. Thus, when the time arrived for the trustees to carry out the direction of the testator and distribute this residuary fund in equal shares among all his grandchildren who survived Ms daughter, they find JosepMne grown to womanhood, and although born out of wedlock her parents had righted the wrong they did to her before she appreciated that they had wronged her, and they find that the legislature has decreed that she and all others similarly situated shall be deemed the legitimate offspring of their parents for all purposes. Justice to Josephine requires that she be permitted to share in this residuary fund with her brother and her cousins The statute and the will are capable of such a construction and the conclusion is sustained by precedent. Dutton v. Pailaret, 52 Penn. St. 113; Edwards’ Appeal, 108 id. 285, 290; McGunnigle v. McKee, 77 id. 85; Johnson’s Appeal, 88 id. 354; Loring v. Thorndike, 5 Allen, 257; Sleigh v. Strider, 5 Call (Va.), 439; McGillis v. McGillis, 11 App. Div. 362, 363; 154 N. Y. 532.
At the time of the death of Catharine O. Lansing there were three great-grandchildren of the testator living and their parents on the side of the testator were dead. Two of these ’ great-grand
Hpon the death of Catharine O. Lansing, leaving less than four children surviving, her two children, Livingston and Watts S. Lansing, each became entitled to receive from the trustees out of this fund the sum of $37,500 in money. I think these were general legacies and that the demand for interest from the time of the mother’s death is well founded and must be allowed. Matter of McGowan, 124 N. Y. 526-531; Wheeler v. Ruthven, 74 N. Y. 431.
The grandchildren are entitled to the earnings on the residue of the fund and securities but not to interest for the reason that it is a specific! bequest of the fund and securities as they exist. Bliss v. Olmstead, 3 Dem. 277; Carr v. Bennett 3 id. 439-458; Murphy v. Marcellus, 1 id. 288; Platt v. Moore, id. 191.
But these grandchildren take the entire residue of the original fund of $150,000' and there remains no fund from which to pay them interest should .such residue be less than the balance of the principal with accrued interest, and, therefore,, this question, which was argued at length, does not seem to be involved.
This clause of the will gave the interest and income of the fund to Mrs. Lansing during her life. Her executors contend that they are entitled to receive the interest which accrued on the money in bank and the securities from the date of the last payment of interest
Upon the same principle the executors of Catharine O. Lansing are entitled to so much of the proceeds of the foreclosure sale of April 7, 1898, as represents the interest in arrears which accrued on the mortgage before the death of their mother.
The will makes specific provision for the trustee’s commissions for investing the fund and collecting and paying over the income during the life of the testator’s daughters, but it is silent as to whether he is to receive commissions on the final distribution of the fund. I have considered the effect of the exception contained in the sixth clausei.of the will, and think it does not show an intention that the commissions provided for in the third clause are to be in full for the services of the trustee in paying out the fund. I am of opinion that the claim of the trustee to commissions at one-half the statutory rate prescribed for executors for receiving and paying out moneys should be allowed upon the distribution of the fund .excepting that part thereof which belongs to' the infant, Louis H. Gibson, the entire amount of such.commissions to come out of the'residue of the fund after the payment of the general legacies to Livingston and Watts S. Lansing. Meacham v. Sternes, 9 Paige, 403; Matter of Mason, 98 N. Y. 527; McAlpine v. Potter, 126 id. 291; Woodruff v. N. Y., L. E. & W. R. R. Co., 129 id. 27.
The trustee having fully completed the trust with the exception of holding that part of the fund to which the infant grandchild is entitled, should be allowed to resign as trustee of said infant on paying said fund over to his successor, arid the general guardian of the infant, who is his guardian ad litem in this action, should be appointed trustee for the infant if he be willing to accept such trust. Matter of Allen, 96 N. Y. 327.
The trustee is entitled also to his unpaid commissions and reasonable expenses earned under the third clause of the will before the death of Catharine O. Lansing, and he is also entitled to reasonable
All of the parties who have appeared herein, excepting the great-grandchildren, whose claims have been allowed, are awarded their taxable costs and disbursements, to be paid out of the residuary fund before distribution. Claims for counsel fees for the attorneys of the respective parties, to be paid out of the fund, are made in some of the briefs. This question was not argued and it has not been shown that any inequity will result from leaving each counsel to be paid out of the share of the fund coming to his clients, and to adjust the matter with his clients. On settling the judgment I will hear the attorneys further on this point.
The allowance of the guardian ad litem of Louis H. Gibson for his services and counsel fees will be fixed by the court'on the settlement of the final judgment, to be paid out of the said infant’s share of the fund.
No evidence has been presented to enable the court to determine whether the property and securities can be divided without prejudice to the rights of any party or whether a private or public sale will be most advantageous. If the parties are unable to agree upon a division and distribution of the residue of the property and securities subject to the approval of the court as to said infant’s interest, then the trustee should .be .authorized to- sell said property and securities at private sale -subject to the approval of the court on notice to the interested parties, or at public sale, as in his judgment will be for 'the best interest of the parties.
In view of the decision of the Appellate Division that this fund is not subject to the collateral inheritance tax, it would not be proper for the court, at this time, to determine how.such tax, if payable, should be borne. If there has been or is to be an appeal from such decision, the final judgment herein should proidde that a sufficient part of -this fund be reserved to await the decision of the Court of Appeals.
Ordered accordingly.