112 Misc. 502 | N.Y. Sup. Ct. | 1920
The plaintiff trustee asks for a construction of one of the paragraphs of the will of its testator, Benjamin Nathan, who died in July, 1870, the will having been made in 1869. The portion of the will presented for construction, so far as it is necessary to quote it, reads as follows:
“ Seventeenth. I give and bequeath to the United States Trust Company of New York as many sums of seventy-five thousand dollars each as I shall leave daughters me surviving; and I also give and bequeath unto said company as many sums of seventy-five thousand dollars as I shall leave sons me surviving who are not included in the sixteenth article or clause'of this my will: in trust to invest each of said sums of seventy-five thousand dollars separately according to its best discretion * * * and to hold one of said sums so invested in trust for each of my children described in this article of my will, and to accumulate the interest or income thereon (of each share or trust fund separately) during their respective minorities. * * And in respect to the said trust funds for my daughters upon the further trust when any one of my daughters arrives at the age of twenty-one years (provided that be after my death) to pay over to such daughter to her sole and separate use, benefit and behoof, free from and in nowise to be subject to the*505 debts, engagements, liabilities or control of her husband, all the accumulations of her said trust fund. And thereafter as respects any daughter so arriving at twenty-one years of age after my death and as respects each of my daughters who shall at the time of my death have attained the age of twenty-one years, from and upon the creation of the trust to collect and receive the rents, income, issues, interest, dividends and profits of the principal of her said trust funds and pay and apply the same from time to time, as collected and received, to the use of the daughter for whom the principal of said trust funds was set apart and invested, to her sole and separate use, benefit and behoof, free from and in nowise to be subject to the debts, engagements, liabilities or control of any husband (and without any power of anticipation on her part) during the term of her natural life. And I declare it to be my further will and intent that in case of and upon the death of any son (except my son Washington) provided for by this article of my will before arriving at age, and also that in ease of and upon the death of any or either of my daughters, except only my daughter Rosalie, at any time, leaving issue him or her surviving, that the principal of his or her share of such trust funds, with any unapplied income thereof, shall and I do so direct be paid over to his or her said issue according to the law of distribution of personal property of intestates now in force in the State of New York. And in case of and upon the death of either of my sons provided for in this article before attaining twenty-one years of age, or of either of my daughters (including my daughter Rosalie) leaving no issue him or her surviving, that then the principal of said trust funds of such child or children so dying, with any unapplied income thereof, shall be paid over to my executrix and form part of my residu*506 ary estate hereinafter mentioned; but in case my wife shall not be then living, then I give and bequeath the same to my descendants according to the law of the State of New York now in force regulating the distribution of personal property in case of intestacy.”
The testator had nine children, all of whom survived him, as did also his widow. The share involved in the present action is the trust fund of $75,000 left for the benefit of the daughter Justina Cohen, who died in August, 1918, without issue surviving her. Of the testator’s nine children who survived him only three survived Justina Cohen. Two of the five who predeceased her left issue surviving her, while the other three that predeceased her left no issue. The widow also predeceased her. The question is whether the words ‘ ‘ but in case my wife shall not be then living, then I give and bequeath the same to my descendants according to the law of the 'State of New York now in force regulating the distribution of personal property in case of intestacy ” mean descendants at the date of the death of the testator or descendants- at the date of the death of his daughter Justina. If the former construction is placed upon the words, then portions of the $75,000 fund now under consideration go to persons not of the testator’s blood, while if the latter construction obtains the entire fund goes to those who are of his blood. The counsel for the executors of Frederick Nathan, one of the testator’s children who predeceased Justina without issue, makes a very able argument that the will created a vested remainder in the descendants of the testator him surviving, and that consequently the executors of Frederick Nathan are entitled to a share of the fund in question, notwithstanding the fact that his branch of the testator’s family was extinct at the time of Justina’s death. This argument is based chiefly upon the proposition that the draftsman of this will evidently used the
Judgment accordingly.