Esslie v. Kraft , 126 N.Y.S. 416 ( 1910 )

Brown, J.

Adam Esslie died Kovember 12, 1888, leaving Caroline Esslie, his widow, Adam PL Esslie, Frank E. Esslie, George F. Esslie, Warren E. Esslie, Carl Esslie, Arthur Esslie, Bose M. Esslie, Kathryn F. Kraft, Anna E. Fell, Louise C. Zeller and Mabel I. Lewis, his children; also leaving a last will and testament in and by which he devised his real estate in the following language, viz.:

“ First. I give and bequeath to my wife, Caroline Esslie, all my real estate situated in lot 46, Mile Reserve, town of Niagara, N. Y., in trust for my children, Katie F., Rossala M., Louisa C., George F., Adam H., Anna L., Frank E., •Warren E., Mabel I., Carl, Arthur, to hold and manage the same and at her death to go to the children aforementioned or the survivors thereof.” The personal property was bequeathed to the wife, Caroline, in trust for the support of herself and the children, the same or any residue thereof remaining at her death to be left to the above-mentioned children or the survivors thereof. “ Both the said real estate and the -said personal property remaining at her death to be divided to my above mentioned children or the survivors thereof in equal proportions share and share alike.”

The widow, Caroline, and all of the above-mentioned children are now living, except Frank E. Esslie, who died subsequently to the death of the testator, leaving no widow or issue him surviving, Adam II. Esslie, who died subsequently to the death of the testator, leaving him surviving Nellie Esslie, his widow, and Raymond II., Elina I., Adam 0., Myrtle and Harold, his children; and Carl Esslie, who died July 27, 1910, intestate, without issue and leaving no widow.

It is very plain that the testator intended that his widow should have the possession and management of both the real and personal property for the support of herself and the eleven children, and' that, at her death, -such real estate and the residue of tire personal property should be possessed and owned by -those of his children Avho should be living at the time of his death. The words, “ or the survivors thereof,” must be construed as referring to those of his children who should be living at his death. The real estate vested in the eleven children named in the will at the death of the testator; the possession or enjoyment thereof was postponed until the death of the widow. The devise was to the widow in trust for the eleven children, or those of th-e eleven children who should survive the testator. To hold that those only of the eleven children who should survive the widow ivere intended to receive the real estate and personal property is to infer that the testator intended that the issue of such of the eleven children as might die before the death of the widow should be cut off and disinherited. The fact that all the property was left in trust for the benefit of the eleven children is a controlling circumstance leading to the conclusion that the testator intended that the eleven children who should survive him should ultimately receive and share in his estate. To say that the testator intended to provide for the care, support and maintenance of any one of his children out of his property for years, and then, simply because such child happened to die shortly before the widow, that such child’s issue should be disinherited, is invoking a construction of this will that cannot be maintained. Under all the authorities to which attention has been called, it must be held that-, the eleven children named in the will having survived the testator, they each, upon his death, .became possessed of a vested right to an interest in the real estate therein devised; that the interest of Adam Esslie has descended to his children, subject to the rights of Kellie Esslie, his widow, and the rights of Caroline Esslie, under the will. Connelly v. O’Brien, 166 N. Y. 406; Stokes v. Weston, 142 id. 125; Livingston v. Green, 52 id. 118; Kelly v. Kelly, 61 id. 47.

Let findings be prepared, with costs to plaintiffs and defendants, payable out of decedent’s estate.

Ordered a:coi dinglye