92 N.Y.S. 177 | N.Y. App. Div. | 1905
The action is brought to obtain a construction of the will of Marie L. Williams who died on the 9th day of June, 1900,. leaving her husband, the executor, and a son, Henry Gr. Williams, and theappellant, her daughter, her surviving. The controversy arises over the construction of the following clause which is the first, provision of the will: “After my lawful debts are paid, I give and bequeath to my son Henry Gr.. Williams the nine’one thousand, dollar bonds on the Newburg, Waldron and Orange Lake Railroad, and L order and direct that the said bonds should be held in trust for him and that he shall receive the interest of them semiannually until he becomes thirty years of age and then to be given to him. It is .nay desire and will that my husband, Lemuel L. Williams, shall act as trustee, and in event of his death it is . my will that Four thousand dollars of these bonds to gó to my daughter Marie E. Sempell, and five thousand dollars of .the bonds to go to my husband, Lemuel L. Williams.” Henry Gf., the son of the testatrix, died without issue and- Unmarried before attaining the age- of thirty. The ,'liusbahd claims that the title to these nine bonds had vested in the son and that the title to them has passed to him as. sole next of kin. The daughter claims, that title to the bonds never vested.in her brother or .vested in him subject to be divested by his death under thirty -.years of age and that she takes five of the bonds under thq will of her mother'. The only other disposition of property made in the (will is a bequest of $9,000,. some jewelry and household effects and . wearing apparel to the daughter and a. .-bequest of certain shares of railroad sto'ck, the household furniture and the. residue of her estate to the. husband/ The husband qualified as executor and collected and' paid the income of the bonds to. his son during the life of the latter. It is contended that he is' thereby estopped from now ¡questioning the validity of the trust-or asserting that his deceased son took a vested interest in the bonds
It follows, therefore, that the judgment should be affirmed, with costs to the respondent payable out of. the estate.
"Van Brunt, B. J., Ingraham and Hatch, JJ., concurred; O’Brien, J., dissented.
-Judgment affirmed, with' costs to respondent payable out of the estate.