42 N.Y.S. 412 | N.Y. App. Div. | 1896
The two actions in the Supreme Court were brought for substantially the same purpose, the construction of the will of Joseph Warren Tompkins, deceased. These actions were consolidated by stipulation, and a single judgment entered therein. The proceeding before the surrogate was instituted to compel David Verplanck, as executor of and trustee under said will, to pay over to the petitioner, Stephanie Morel, as executrix, one-half of the income of certain trust funds created by said will. Joseph W. Tompkins died in 1874, leaving him surviving his widow, Sarah W. Tompkins, and two children, Jotham S. "Tompkins and Marion W. Tompkins. Sarah W. Tompkins died in 1885. Marion W.. Tompkins died in 1889, unmanned and without issue. By her will she gave to one Emile B. Morel all her estate, real and personal. Morel died on the 16th day of April, 1894, leaving a will, by Avhich his widow,
The only portions of the will of Joseph Warren Tompkins material to the controversy now before us and which require construction are the following:
“/Sixth. My house and lot in the city of New York, known as No. 15 Wall street, I give and devise to my said executors with everything appertaining thereto with power to take possession of, occupy, rent out and keep in repair and receive the rents, issues and profits thereof as if they were owners thereof, during the lives of my wife, Sarah Walton, and my son Jotham, but upon the express trusts and condition that during the said lives, or that of the longest liver of them, my said executors, as often as received, pay and distribute in equal parts the net rents of said house and lot to my said wife, Sarah Walton, my daughter Marion and my son Jotham, or the lawful issue or descendants of my said son or my said daughter, if either should die before my said wife, such descendant receiving the share of their parent; and at the decease of my said wife and son Jotham to deliver up to my said two children or their descendants the said house and lot which is then to belong to them in fee, but inasmuch as by fire, accident or change in the city of New York it may be expedient and necessary or greatly to the interest of my estate during the lives of my said son and wife, or longest liver of them, to sell and convey said house and lot, No. 15 Wall street, in fee, in that event I authorize my said executors to apply to the Supreme Court, and upon proof to said court of the propriety and necessity of said sale to its satisfaction, I authorize said court to direct a sale thereof by my said executors in fee, and the moneys arising from the sale thereof to be invested upon interest by my said executors until the death of my said wife and son, or the longest liver of them, and the interest and income thereof paid in equal shares to my said wife and son and daughter as aforesaid, and at the death of the longest liver of my said wife and son, the principal to be equally divided between my said son and daughter or their lawful descendants.”
“ Eighth. All the moneys arising from the sales of my said real and personal property in this my will ordered to be sold and not in this will otherwise disposed of, after payment of all my*576 just debts and liens on my said real estate and the legacy aforesaid, I order my executors to invest and keep invested on interest on bond and mortgage on real estate in the State of New York, in the stocks or bonds of the State of New York or of the United States at the best interest they can obtain for the same during the life of my said wife and son, or the longest liver of them, and as often as received to pay and divide equally the said interest between my said wife and son and daughter.”
The will contains no residuary clause and makes no further final disposition of the testator’s estate other than those prescribed in the sixth and eighth clauses. The "Wall street property was sold in the year 1883 under the authority given by the will. As to the effect of these testamentary provisions, the learned trial judge of this court and the surrogate have reached opposite conclusions.
Both courts held that, by the two clauses cited, a valid trust of the whole property passing under the clause was created, which would "terminate only with the death of Jotham S. Tompkins. This determination was correct and is not seriously assailed on this appeal by either party. The first question, therefore, that arises is as to the rights of the parties in the income of the trust funds. The terms of the gift of the income of the two funds are substantially the same, that of the fund under the sixth clause being “ the interest and income thereof paid in equal shares to my said wife and son and daughter as aforesaid; ” that of the eighth clause being, “ and as often as received to pay and divide equally the said interest between my said wife and son and daughter,” and the same rules of law apply to both. As the income is to be divided equally between the beneficiaries, the gift is not to the beneficiaries as joint tenants nor as a class, but to them as tenants in common. (2 Jarman on Wills, 257; Embury v. Sheldon, 68 N. Y. 227; Delafield v. Shipman, 103 id. 463.) It follows that on the death of any of the beneficiaries his share did not go to the survivors, but was undisposed of, and the right to it passed under the provisions of the Revised Statutes (1 R. S. 726, § 40): “ When, in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation or of' the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the per
Hence, to determine who is entitled to the surplus income of the trust funds, we must see who are presumptively entitled to the next eventual estate in the corpus of the trust.
In the sixth clause of the will the testator directs that the fund arising from the sale of the Wall street property shall, at the death of the longest liver of his wife and son, be equally divided between said son and daughter or their lawful descendants. The gift to the son and daughter unquestionably is, both under our statute and at common law, a gift to them as tenants in common ; so the survivor could not take the whole. (Matter of Kimberly, 150 N. Y. 90; Delafield v. Shipman, supra) The words “ or their lawful descendants ” are, under the present rule, to be construed as creating a gift by substitution in case of the death of the first legatee or devisee (1 Jarman on Wills, 481); if the gift is immediate, a death in the lifetime of the testator; if the gift is after a life estate, a death during the life of the life tenant. (2 Jarman on Wills, 1571.) In this case, therefore, the substituted gift would take effect in case the daughter Marion left descendants; but Marion left no descendants. There have been one or two cases in which, under the peculiar circumstances of the testator and the language of the will, the courts have extended the term “ descendants ” to include collaterals; but this is not the rule. “ Neither her brother nor sister can take under the term ‘ descendants.’ ‘ Descendants ’ does not mean next of kin or heirs at law generally, as these terms comprehend those as well in the ascending as in the descending line, and collaterals ; but it means what the word obviously imports, the issue of the body of the person named of every degree, as children, grandchildren and great grandchildren.” (Daly, J., Hamlin v. Osgood, 1 Redf. 409. See to same effect 2 Jarman on Wills, 944.) This will is devoid of any language or circumstance which would justify extending the term “descendants” beyond its proper meaning. The brother Jotham, also, has had no issue. Therefore, without discussing the question whether
But if I should be wrong in the view that the gifts to Marion and Jotham vested on the death of the testator, subject only to be divested in favor of the descendants, I cannot see that it would produce any substantial change in the result as to the rights of the parties. If the gifts are contingent, the one to Marion has already failed by her decease, and the one to Jotham must fail by the impossibility of his surviving himself. Of course I state this in the absence of descendants, of whom there are now none. It follows that the testator has died intestate as to the remainder after the termination of the trust term. From this point this trust may be considered in connection with the trust under the eighth clause, for, as to the latter, the testator unquestionably died intestate as to the remainder after the trust term.
The learned trial judge fell into an error in his view as to the effect of the intestacy of the testator. Because the intestacy was that of a remainder, he seems to have been under the impression that the heirs at law of the testator could only be ascertained at the termination of the precedent estate. When the testator died, any interest or estate undisposed of by his will passed at that instant to his heirs at law or next of kin by virtue of the Statutes of Descent or Distribution. There is a class of cases, of which Delaney v. McCormack (88 N. Y. 174) and Matter of Baer (147 id. 348) are examples, where, under a will, the heirs at law or next of kin of a person are to be determined at a time other than that of his decease. But in such cases the estate passes wholly by virtue of the will as a devise or bequest, and not by virtue of the Statutes of Descent or Distribution. The remainder in these trust funds, after the death of Jotham and the death of Marion (in case she died before Jotham) without descendants, descended to Jotham and Marion as the testator’s heirs at law. Such remainder was alienable, devisable and descendible. (Sheridan v. House, 4 Keyes, 569; Moore v. Littel, 41 N. Y. 66; Jackson v. Littell, 56 id. 108.) Marion’s estate passed by her will to Morel and by the will of the latter to the defendant Stephanie Morel. She is, therefore, “the person presumptively entitled to the next eventual estate.”
It has occurred to me that, in case of intestacy, it might be
The judgment in the action in this court should, therefore, be reversed and judgment entered construing the will in accordance with this opinion; and the decree of the surrogate should be affirmed, with costs of this appeal to all parties, to be paid out of the estate.
All concurred.
Judgment reversed and judgment directed m accordance with the opinion of this court, with costs of the appeal to all parties, to be paid out of the estate. Decree .of the surrogate affirmed, with costs to all parties, to be paid out of the estate.