Williams v. O'Conor Jones

54 A.D. 349 | N.Y. App. Div. | 1900

McLaughlin, J.:

The testatrix, Mary Mason Jones, died on the 28th of May, 1891. She left her surviving her son Mason R. Jones and her daughter' Mary de Trobriand. The son had been twice married and had several children by his first wife," who were living at the time of the death of the testatrix. He also had a son, Renshaw Mason Jones, by his second wife, Louise O’Conor Jones, both of whom were living at the time of the death of the testatrix. The sbn Benshaw died on the 5th of November, 1894, unmarried and without issue, leaving him surviving his father Mason and his mother Louise. On the 18th of February, 1899, the father Mason died, leaving him surviving his wife Louise (the defendant Catharine . L. O’Conor Jones) and several children by his first wife, and / their issue. The complaint alleges that the, testatrix did not specifically direct what disposition should be made of the property devised in the 9th clause of her will in case Mason should die leaving his wife Louise, but not his son Benshaw, surviving, and that this event having occurred, a doubt has arisen as to the proper construction of the 9th clause, and particularly as to the disposition to be made of the. property therein specified.

In the answer of the defendants Catharine L. O’Conor Jones and Mary de Trobriand, it is alleged, in substance, that Benshaw having died before Mason, and Mason having died leaving him surviving his wife Louise, the trust attempted to be created by the 9th clause of the will of the testatrix was, by reason of such facts, terminated, and that they thereby became entitled to receive the principal of said trust estate under the residuary or 10th clause, which reads as follows: . . '

“ Tenth. All the rest, residue and remainder of the estate and property, both real and personal, of every kind arid description and wheresoever situated, which shall belong to me or be subject to my disposal at the time of my death, I give, devise and bequeath in fee simple and absolutely to my son, Mason B. Jones, and my daughter, Mary de Trobriand, to be divided between them in equal shares.”

In the answer of the other defendants (the children by. the first wife of Mason and their issue) it is alleged in substance that under thé 9th clause of the will of the testatrix they became entitled to one . equal undivided half part of the estate meritioned .in such clause upon the death of Mason, arid by reason thereof they are now entitled to such orie-half part, and that as to the title to the one remaining half part, it is now vested in the plaintiffs as trustees for the benefit of Louise during her life or until her remarriage, and when either of such events takes place, then that title will also absolutely vest in them.

The learned justice at Special Term, after a trial had, reached the conclusion that, by reason óf the death of Eenshaw prior to the death of his father, Mason, the principal of the trust estate, upon the death of Mason (Louise being then living), was undisposed of, and the title to all of the property therein specified under the residuary or 10th clause of the will became vested in the defendants, Mary de Trobriand and Catharine L. O’Conor Jones, as sole beneficiary and legatee under the will of Mason. We are satisfied, after a careful consideration of the question presented, that the conclusion reached by the learned justice at Special Term was right. By reading the 9th clause of the will of the testatrix, it will be seen that the real estate therein mentioned is devised in trust to the executors named for the life of the son Mason, during which time the trustees are to receive the rents, issues and profits and apply one-half thereof to the use of Mason during his life and the other half to the use of his wife Louise during his life, and in case of her death prior to that of Mason, then the half given to her is to go to him. This trust, manifestly, was measured by and depended upon the life of Mason. It terminated upon his death, and, of course, cannot be involved in any way in the determination of the question presented by this controversy.

After the death of Mason the testatrix desired to dispose of the trust estate in several ways, such disposition, however, to depend upon and be determined by the circumstances existing at the time of his death.

(1) She provides that, “ from and after the death of my said son, if he shall leave him surviving his said wife, Louise O’Conor Jones, and their son, Eenshaw Mason Jones,” the trustees are to continue to hold one-half of the trust estate until the death or remarriage of Louise for her benefit, and upon her death or remarriage, they are to convey such half to Eenshaw, if he be then living, or to his issue if he shall be then dead leaving issue him surviving, or in default thereof, to the children of Mason by his first wife. The other half is to be held for the benefit of Eenshaw during his life, the remainder to his surviving issue, or in default thereof, to the issue of Mason by his first wife. From this provision it is clear that the trust attempted to be created for the lives o.f Louise and Eenshaw could only have effect, or come into existence at all, upon the death .of Mason, he leaving him surviving both his wife Louise and their son Benshaw, an -event which did not occur. This trust,, therefore, never took effect, and the remainders, which depended upon it never came into existence. ; ,

(2) The testatrix next provides that “if my said son Mason E. Jones shall survive the said Louise O’Conor Jones, and at his death shall leave him surviving his said son Eenshaw Mason Jones,” the trustees are to continue’ to hold the trust estate for the .benefit of Eenshaw during his life, with the remainder to his issue, or if he shall die without issue, then the remainder to the issue of Mason by his first wife. This provision, however, like the preceding one, depended upon circumstances which never existed, viz., the survival of ■ Mason after the death of his wife Louise, and at his death leaving him surviving his son Eenshaw.

(3) According to the final provision, it is provided that- “ if before the death of my said son the said Louise O’Conor Jones shall have died and the said Eenshaw Mason .Jones shall also, have died,” the trustees are (1) to convey said trust estate to the issue of Eenshaw in equal shares, if he leave issue him surviving; or (2) if he died without surviving issue, then to convey thé same to the issue of Mason by his first wife. These events have not occurred, and manifestly a claim cannot be successfully made that any interest could be acquired by the appellants under or by virtue thereof. Both of the remainders created by them' are dependent upon the death of Louise and the death of Eenshaw before that of Mason, an .event which did hot occur.

• We have thus referred at Some length to the different provisions of the 9th clause of the will of. the testatrix, for the purpose of showing, as clearly as possible, that the circumstances upon which the issue by the first wife and their issue could by any possibility acquire an interest in the trust estate have not occurred, and for that reason they are not entitled to receive any of the property therein specified or any interest therein. A consideration of this clause of the will of the testatrix cannot fail to impress one with the fact that she intended that the children and their issue of the first marriage should not have any interest in her property unless the conditions, set out in such clause existed. If we are right in this, then it necessarily follows that the court at Special Term properly construed this clause of her will. The construction to be placed upon a will is always to be determined by the intent of the testator, if such intent can be ascertained. This is a fundamental rule, and the rule is equally fundamental that effect is to be given to that intent, if it can be done without contravening a settled rule of construction, or a statute of the State. To aid us in arriving at the intent of the testatrix, counsel for the respective parties have called our attention to many authorities, to which we deem it unnecessary to refer in this opinion further than to say that we have examined them. In construing a will, authorities furnish little aid. Each case must necessarily stand by itself, and its proper construction can only be determined from the words there used. . •

Here in the view which we have taken, the intent of the testatrix seems plain. She intended that upon the death of Mason the trust created by the 9th clause should terminate and the property therein mentioned should pass under the 10 th or residuary clause of her will, unless (1) Mason left him surviving both his wife Louise and his son Renshaw, or (2) unless he left "him surviving only his son Renshaw, or (3) unless he left him surviving neither his wife Louise nor his son Renshaw. Hpon the occurrence of some one of these three contingencies the trust under which the appellants could become entitled to any interest in the property specified in this clause was dependent. Neither title nor interest in the trust estate could be acquired by any one under this clause of her will, unless one at least of these three events occurred, and none of them having occurred, it follows that upon the death of Mason the property mentioned in the 9th clause was undisposed of and passed under the 10th or residuary clause to Mary de Trobriand and to the defendant Catharine L. O’Conor Jones, as sole surviving beneficiary under the will of Mason.

The judgment is right and must be .affirmed, with costs to each respondent appearing by a separate attorney, payable out of the estate.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs to each respondent appearing' by a separate attorney, payable out of the estate.