In re the Judicial Settlement of the Estate of Butler , 50 Misc. 229 ( 1906 )

Church, S.

The deceased herein made a will in which, after making various provisions for certain of her children (of ‘ whom she had five), she made the following provision for one of' her children and for her grandchildren of such child: “ One, equal one-fifth of the residue shall be again divided into five parts, one of which I give and 'bequeath to my son, Edwin Butler, and the remaining four-fifths of said one-fifth to my said* son, Orlando W. Butler, in trust, however, for my grandchildren, Frederick A., Adelaide, Edwin, Jr., Lillian, Howard, Florence and Ethel, the children of my said son Edwin, to be, divided between them, share and share alike, when the youngest, of them shall have reached the age of twenty-one years.”

■Subsequently to the making of such will, one of said grand-. children, Frederick A., died; and, also, the said son, Edwin-Butler, had another child whose name is Wellington F. Butler. 'Subsequently to the happening of both these events, the testatrix - made a codicil to her -last will and testament in which she reaffirmed the same; but in such codicil she made no specific provision to cover the contingency arising from the death of Frederick A. Butler and the birth of Wellington F. Butler.

The special guardian, representing the said Wellington F. Butler, contends that this paragraph of the will should be construed as a gift to the children of Edwin Butler who were alive. at the time of the death of the testatrix and that, therefore, the infant, Wellington F. Butler, is entitled to share in it the same, as his brothers and sisters and that the said trust should be continued until the said infant has reached the age of twenty-one, years.

It appears that the executors have previously accounted herein and that the question of the construction of this paragraph of the will was made the subject of judicial examination by the. surrogate and that the surrogate interpreted the clause in accordance with the contention of the said special guardian; but it also appears that the said infant, Wellington F. Butler, was,., not made a party to such proceeding and, therefore, the parties-■seek to have such question again determined. Irrespective of whether the former decree herein is res adjudicata as to the rights of the infant, Wellington E. Butler, the position taken by the special guardian on his behalf seems to me to be correct, •as' also does the previous decree of the surrogate. The special guardian has very carefully framed an excellent brief showing not only that the decision of the surrogate was in accordance with the decisions of the higher courts, as they had 'been handed down at that time, but that the same rule has been followed in subsequent, recent decisions by the Court of Appeals; and the position of said special guardian is therefore sustained. A decree will be entered declaring that all the children of the said Edwin Butler in existence at the time of the death of the testatrix are entitled to share in such trust fund, and that such trust •should be continued until the infant, Wellington E. Butler, arrives at the age of twenty-one years.

Let a decree be therefore presented accordingly.

Decreed accordingly.