108 Misc. 514 | N.Y. Sup. Ct. | 1919
The testator, Peter B. Taylor, died in the city of New York on or about the 4th day of January, 1909, leaving a last will and testament which was duly admitted to probate. In his will he provided among other things: “ Fourth. I direct my executors hereinafter named, to divide all the rest, residue and remainder of my estate, real and personal, of whatsoever kind or nature and wheresoever situated, of which I may die seized or possessed or be in any way entitled to, into twenty-two equal parts or portions, which parts or portions I give and bequeath and direct my executors to pay over and distribute as follows: * * * Four other of said twenty-two parts to my
The testator’s sister survived the testator and died on April 13, 1918. The trustee now asks for a construction of the 5th paragraph of the will and a direction as to the distribution of the trust fund provided for in that paragraph. Inasmuch as the fund must be regarded as personal property and the testator expressly provided that it be distributed according to the Statute of Distributions, it is quite evident that he has used the words “ next heirs by blood ” in the sense of next of kin and it is not disputed that they should be given this construction. The serious question involved in this case, however, is whether the distribution must be made among the next of kin living at the testator’s death or among those persons who would have stood in the relation of next of kin to him
“ The next heirs ” under the will take as members of a class. There is no present gift in express terms to the members of that class but they take only under the provision of the will that after the death of the life tenant the trustees should “ convey, pay over and distribute ” this fund among them. Under well established canons of construction, ordinarily where there is a bequest to trustees in trust to collect and pay over the income of a fund to a life tenant and after the death of the life tenant to pay over and distribute the fund, the remainder will not vest in the beneficiaries until the time for payment arrives (Wright v. Wright, 225 N. Y. 329 and cases there cited), and the class of beneficiaries is fixed as of the date of the death of the life tenant and not as of the death of the testator.
The testator left him surviving a brother and sister and descendants of a pre-deceased brother and sister. At the time of the death of the life tenant, Jeannie McKewan, one son of the life tenant survived and numerous other nephews and nieces as well as the descendants of a deceased nephew and niece of the testator. If the remainder after the death of the life tenant vested in the testator’s next of kin at the death of the testator, the descendants of each brother and sister take the share which their ancestor would have taken. If, on the other hand, the will is to be interpreted in accordance with the usual canons of construction and the gift over gave to the members of the beneficiary class living at the death of the testator no vested interest, then their ancestors will take not by representation from their ancestors but as present next of kin.
The contention is now urged by some of the nephews and nieces or their assignee that this rule of construe
In the present case also, it seems to me quite clear that the testator intended to bequeath no vested remainder to his next of kin. The testator in other provisions of his will used language appropriate to create a present gift and apparently understood the difference between a present gift and a direction to distribute and pay over. It would seem fairly plain
The sole remaining question is whether the children of the deceased nephew and niece share in the estate. In my opinion there is no serious doubt that they have this right. The Statute of Distributions in effect at the time of the death of the testator (then section 2732 of the Code of Civil Procedure) was amended by chapter 319 of the Laws of 1898, and so far as concerns the question before me is substantially unaltered since that time. Previous to the amendment of 1898 the statute provided that “ no representation shall be admitted among collaterals after brothers’ and sisters’ children.” The amended statute provided that representation shall be admitted among collaterals in the same manner as provided by law in reference to real estate. The revised statutes of 1813 placed the law of descents among lineal and collateral relatives upon the same footing and permitted representation of brothers and sisters even beyond their children. See Pond v. Bergh, 10 Paige, 140, 148. The effect of the amendment of 1898 has made the same rule applicable to personal property and the grand nephews and
Ordered accordingly.