154 N.Y.S. 527 | N.Y. App. Div. | 1915
Lead Opinion
By the 6th clause of his will Lorillard Spencer, 2d, provided, among other things, as follows:
Among other property deceased left a one-third interest in a tract of land situated at Williamsbridge, borough of The Bronx, city of New York, which had come to him through inheritance and which had been in his family for many years. As to this one-third interest he directed by the 3d clause of his will that if the farm was not sold by the executors of his brother Charles before July 28, 1911, the proceeds of the testator’s interest in said farm should be divided as follows: If he sold his entire interest in the farm previous to his death he bequeathed to his son, Lorillard Spencer, Jr., the sum of $100,000; or, if he only sold a portion thereof before his death, then a sum equal to twenty-five per cent of the net proceeds of the sale. If, after the testator’s death, the whole of his interest in the farm or any part thereof was sold by his executors, then he gave and bequeathed to his son, Lorillard Spencer, Jr., a sum equal to twenty-five per cent of the net amount realized on the sale. If the son should die before him, or if, at the time of his death, the whole or any part of the farm should remain unsold, then he gave to his daughter-in-law, Mary R. Spencer, the same share in the proceeds of said property which his son would have received if living. No disposition was made of the remainder of his one-third interest in the said farm or the proceeds of sale thereof, or any interest therein over and above the amount so bequeathed to his son. The personal property turned over to the trustees amounted to $156,802.50 in securities and cash, sub
McLaughlin and Hotchkiss, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.
Dissenting Opinion
The question presented on this appeal is, when certain amounts paid by the trustees for taxes on an interest of the testator in certain unproductive real property should be paid from the income of the trust property. The testator had upwards of $250,000 of personalty, several parcels of productive real estate located in the city of New York, a resi
A consideration of the careful provisions of this will must satisfy any one reading it that the first thought of the testator was to insure to his wife an income for her life. The interest
It would seem that the net income from the estate during this period has been about $23,218.63. From this has been expended on the Newport property, which has been occupied by the widow, $8,824.45, and for carrying charges and taxes on the Williamsbridge property $9,877.19. The trustees paid this sum for taxes out of the income received from the balance of the trust. The widow claims that these taxes and charges should not be paid out of such income, and the court has sustained' the contention of the trustees.
Did the testator intend that the charges for carrying the Williamsbridge property until it could be sold, as he evi
This property, however, does come within this rule, for it was evidently not the • intention of the testator that it was to go to the trustees as part of the trust. Its disposition was specifically' provided for by the 3d clause of the will. If. all sold before his death, $100,000, or one-fourth of the net proceeds of the part sold, if only a part was sold, was to be paid to his son. As to that portion of the proceeds which was to be paid to his son, it was not, and never would, be a part of the trust estate. The testator evidently understood that this Williamsbridge property would not produce any income; that if he did not sell it during his life his trustees would, and that the proceeds would be disposed of as he directed — that is, one-quarter to his son, and the remaining three-quarters to become part of the residuary estate. It was clearly not anticipated that the period before the sale of the property would be so long that the question as to how the taxes should be provided for would be serious, and so the property was left in a class by itself, the taxes and carrying charges to he paid from the proceeds of the sale when made. Considering the careful provisions in the will by which the whole income of his property should be assured to the testator’s widow, and to his son after her death, without deduction for the so-called “ sinking fund ” or to make up any deficiency, and the separate disposition that he makes of the proceeds of this Williamsbridge property when sold, they seem to me to carry the conviction that it was not the intention that
The judgment should, therefore, be modified as hereinbefore indicated, with costs to all parties payable out of the estate.
Laughlin, J., concurred.
Judgment and order affirmed, with costs.