Bushnell v. Drinker , 5 Redf. 581 ( 1882 )

The Surrogate.

First. What are the rights of the petitioner under the will? According to the claim of the executors, the testator intended that the identical fund which furnished a life income to his son Charles, should, after the death of the son, pass to the children who survived him. If this view be correct, it is of course immaterial whether, in the lapse of years, the value of such fund has grown, or has dwindled, or has remained unaltered. The transfer, to this petitioner, of the very trust estate which afforded an income to his father, whether the same is worth $65,000, or more or less, will fully satisfy the testator’s bequest.

Now, what is the alternative, if this be not accepted as the true reading of the will, but if, as is claimed by petitioner, the trustees are bound to supplement the trust fund out of the body of the estate, in a sum sufficient to make up the value of his interest to $65,000? It seems to me that to allow such a claim would involve a very forced interpretation of this will. It would be to construe it precisely as if it had given to Charles I. Bushnell, during his life-time, the income of $65,000, and had given to his children a separate and distinct legacy of a similar amount, payable upon the death of their father, and the attainment of his majority by the younger child.

In other words, the petitioner, to be consistent in his claim, must insist that whatever he takes under the will really comes out of the body of his grandfather’s estate, and is in no manner dependent upon, or affected by, or associated with the life estate of his father. If this be so, it is hard to understand why the testator provided that if Charles should die, leaving a minor child, the trustees should continue, until that child had become of age, to keep invested as a distinct trust, the fund which had afforded his father a life income.

It seems to me very evident that the decedent had just such intentions with respect to his child and grandchildren, as find expression every day in testamentary papers. He designed that his grandchildren should enjoy full and absolute possession of that very property of which their father, in his life-time, had enjoyed-the use.

The cases of Giddings v. Seward (16 N. Y., 365), and Pierrepont v. Edwards (25 N. Y., 128), are cited by petitioner’s counsel, as authority for the claim that this will gives to Giles F. Bushnell a demonstrative legacy, the full amount of which must, at all events, be paid to the legatee, whatever lot may have befallen the fund which yielded a life interest to Ms father. I cannot find that any such purpose is disclosed by the language of the fifth clause of this will, whether considered by itself or in connection with the other parts of the instrument. I hold, on the contrary, that if, as directed by the testator, the trustees set up a fund of $65,000 during the life of his son Charles, and have kept the same invested as the will directs, they will now discharge their full duty to this petitioner by delivering that identical fund into his hands.

Second. Certain evidence was given before the referee, which is claimed to justify his finding that, among the various investments of the trustees, the 128th street loan was an improvident one, for which the petitioner may hold them answerable. The trustees insist, on the other hand, that none of their investments can here be the subject of contest, because the accounts which include them have been long since settled by the decrees of this court. To this it is objected that these decrees are not binding upon this petitioner, because he was not a party to the proceedings of which they were the culmination.

In reply, it is urged that, as his father was then alive, there was no need of citing the petitioner, who had at that time only a prospective and contingent interest in the estate, to attend these accountings. The records of this court furnish a better answer to this objection, disclosing, as they do, certain facts which counsel on both sides seem to have forgotten.

In March, 1867, upon the petition of Ann Bushnell, executrix of Giles Bushnell’s estate, a citation was issued to divers persons interested, to attend her final accounting. Among others, duly cited, was this petitioner, as is shown by affidavit on file. It appears, by this accounting, and the decree entered thereon in January, 1869, that certain bonds, mortgages and other securities, in the sum oí $65,000, had been allotted and set apart to the testamentary trustees for the benefit of Charles I. Bushnell.

It also appears, by affidavit on file, that this petitioner, among others, was duly cited to attend a subsequent accounting of the trustees, and that by decree of April 15, 1879, their account was settled, and they were allowed credit touching the 128th street investment, in the sum of $8,160.88, whereof $4,300 was for the amount paid by them on the foreclosure sale, and $3,860.88 was for the deficiency judgment. ISTo application has been made for setting aside or modifying these decrees, either as respects these matters or any others.

They must, therefore, as it seems to me, be deemed conclusive against this petitioner and decisive of the present controversy.

Decreed accordingly.