197 A.D. 304 | N.Y. App. Div. | 1921
The appellants are the next of kin of Henry Morgan. The respondents are the executrices of the will of Penelope Overton
“ Now this indenture witnesseth, that in consideration of the premises and of the said intended marriage, and for other good and valuable considerations him thereunto moving the receipt whereof is hereby acknowledged, the said Henry Morgan doth, simultaneously with the execution and delivery hereof, pay and deliver over to the said parties of the second part the sum of one hundred thousand dollars in cash the receipt whereof is hereby by them acknowledged, which sum and the investments and reinvestments thereof it is -hereby declared and agreed shall constitute a trust fund to be held by the said parties of the second part as Trustees and the survivor of them and their or his successors or successor in the trust, upon the trust following that is to say: To invest and from time to time during the continuance of the trust to reinvest the same and keep the same invested as hereinafter provided, and until the said intended marriage shall be solemnized to have and to hold the same and the income thereof for the use and benefit of the said Henry Morgan, and upon the further trust, from and after the solemnization of the said intended marriage and during the natural life of the said Penelope Overton White, the said intended wife, to pay over the whole net income from time to time arising from the said trust fund and coming to the hands of the said Trustees or Trustee, after deducting all proper expenses and charges including taxes if any such shall be lawfully imposed, to the said Penelope Overton White, the said intended wife for her sole and separate use and benefit, and upon the death of the said Penelope Overton White the said intended wife, upon which event it is hereby declared the said trust shall terminate, to transfer and deliver over the capital of the said trust fund to the said Henry Morgan, if he be then living, and if the said Henry Morgan be then dead then to his personal representatives or to whomsoever may be entitled under his last will and testament to receive the same as part of his estate,
Thereafter Henry Morgan died in 1891, intestate, and left him surviving his wife and four children. Three of these children have since died, themselves leaving descendants. These children were all children by a former wife of Henry Morgan. Penelope Overton Morgan had no children either by her former marriage or by her marriage with Henry Morgan. Penelope Overton Morgan, the widow of Henry Morgan, died in 1918 having left a will and having appointed Adela O. Girdner and others as executrices thereunder.
The decision of the Special Term has given to the executrices of the widow one-third of the capital of this trust fund and the remaining two-thirds has been given to the next of kin of Henry Morgan. (See 109 Misc. Rep. 228.) No question is here raised as to the division between these next of kin. The next of kin of Henry Morgan are appealing from this decision, contending that the executrices under the will of the widow are not entitled to any part of the fund, but that the fund belongs entirely to the next of kin of Henry Morgan.
Before discussing this question raised by the appeal it may be well to consider the appeal of William P. Dixon, as assignee for the benefit of creditors of Henry Morgan, who claims the entire fund under an assignment for the benefit of creditors made by Henry Morgan in 1884. There was no attempt made by said assignee, however, to take possession of the property. This action was brought in 1919, more than thirty-five years after this assignment for the benefit of creditors and no claim had at any time been made before that time of any interest by the said assignee. By section 110 of the Real Property Law it is provided that “ Where an estate or interest in real property has heretofore vested or shall hereafter vest in the assignee or other trustee for the benefit of creditors, it shall cease at the expiration of twenty-five years from the time when the trust was created, except where a different limitation is contained in the instrument creating the trust,
As I read the trust deed the intent of the grantor seems to me clear to give to the woman whom he afterwards married, as her marriage settlement, a life estate and a fife estate only in this trust fund of $100,000. By the last clause of the deed this seems to be made perfectly*plain, wherein he states that it is “ expressly declared and agreed that the whole residuary interest in said trust fund after satisfying the purposes of the said trust by payment over of the net income to the said Penelope Overton White during her fife as aforesaid is reserved to and shall belong to the. said Henry Morgan as his property.” Words could hardly have been chosen to express more clearly his intention to give only a fife estate to Penelope Overton White and to reserve to himself all other interest in the property. Nor does any part of this deed express any other intention. Upon the death of Penelope Overton White the capital of the trust is to be transferred and delivered to Morgan if living, and if dead “ to his personal representatives or to whomsoever may be entitled under his last will and testament to receive the same as part of his estate.” Immediately following this clause is the clause which reserves to the said Morgan as his property all the interest in that estate other than the life interest given to Penelope Overton White. If a will had been executed by Morgan the legatees under that will would not have taken as appointees under the trust deed. They would have taken as legatees of Henry Morgan under his will. It is clear also that the personal representatives to whom reference is made are his administrators who are appointed in law to distribute his property and they do not take in any
Clarke, P. J., Latjghlin, Page and Merrell, JJ„, concur.
Judgment affirmed, with costs to all parties separately appearing payable out of the estate.