In Re the Accounting of Irving Trust Co.

Joseph Battell died while a resident of and domiciled within the State of New York on July 8, 1874, leaving a last will and testament dated February 7, 1868, which was duly admitted to probate in Kings county on August 11, 1874.

By the terms of the will the testator directed that his residuary estate be divided into "so many equal parts shares or portions as there shall be nephews and nieces of mine who are living at my death or who have died before me leaving lawful issue who are then living; And to assign or allot one such share to each nephew, And one such share to each niece, and one such share to the lawful issue of each nephew or niece who may have died before me" and that each such share should be held in trust for the benefit of such nephew or niece or lawful issue of nephews or nieces as to whom the share was applicable for life, "And at his or her death to assign transfer and pay over the same to his or her lawful issue if any there shall be then living: And if there be no such issue when living, then and immediately upon the decease of such nephew or niece to assign transfer and pay over the same to such person and persons as are then by law the lawful ``heirs-at-law' of such nephew or niece and in such shares and proportions as they would by law inherit (as heirs at law) from such nephew or niece."

One of testator's nieces, Ellen Battell Stoeckel, daughter of one of his brothers, was born in Norfolk, Connecticut, on March 10, 1851, and was a resident of and domiciled within the State of Connecticut at the time of her death on May 5, 1939. She took one of the trusts under the will. Upon her death the trustees filed a petition for final judicial settlement of their account as such and for instructions as to whom and in what proportions payment of the corpus of the trust with accumulations should be made and to the end that such a determination might be made a request for construction of the above-quoted provision of the will was made. The cestui que trust died without leaving issue her surviving. The Surrogate held that distribution should be made to her heirs at law as defined in subdivisions 6 and 10 of section 83 of the present Decedent Estate Law (Cons. Laws, ch. 13; L. 1929, ch. 229, as amd. by L. 1930, ch. 174, effective September 1, 1930), with the result that the entire remainder should pass to Rosa E. Tuttle, a first cousin of Ellen Battell Stoeckel but no blood relative of the testator. The Appellate Division reversed the Surrogate and held that those sections of the Decedent Estate Law had no application and that the fund passed, upon the death of the cestui que trust, under the laws as they existed prior to September 1, 1930, with the result that the property should pass to the heirs of the testator's blood under the authority ofMatter of Waring (275 N.Y. 6).

It is asserted, at the outset, that the Laws of Connecticut control on any determination as to who the "heirs at law" of Mrs. Stoeckel may be. However, Battell, when he made his will and when he died, was a resident of and domiciled within New York State and his estate (including the trust in question) has since been administered here and it is here to be distributed. The property does not pass through Mrs. Stoeckel. The circumstance of her death, wherever it might have occurred, merely released the trust property for distribution under the terms of the Battell will. Those and other considerations lead us to conclude that the laws of New York State govern the distribution of the fund in question (Matter of Devoe, 66 App. Div. 1,6; affd., 171 N.Y. 281; Matter of Winslow, 138 Misc Rep. 672, 677; affd., 233 App. Div. 872; 259 N.Y. 550; and see 7 Heaton on Surrogates' Courts [5th ed.], p. 420, § 568; Restatement of Conflict of Laws [Am. Law Inst.], § 296).

It is a primary rule of construction that the courts must find and follow the intent of the testator as disclosed by the words of the will itself (Matter of Chalmers, 264 N.Y. 239; Matterof Durand, 250 N.Y. 45, 54; Matter of Watson, 262 N.Y. 284,293) if the wording thereof is unambiguous, and there is no ambiguity in connection with the wording of the will here involved. With the exception of certain specific bequests for charitable purposes, not a dollar of the testator's estate was left to other than blood relatives. There is not a word in the will to indicate any intent that the residuary estate or the remainders of the several trusts should pass to strangers of the blood, but on the contrary the will from beginning to end indicates a specific contrary intent. It is clear that the testator intended that the corpus of the trust should pass, in the event that Mrs. Stoeckel should die without issue, to those who would inherit as her heirs at law by the provisions of the law applicable to his will and to his property which were in effect at the time of her death. Sight must not be lost of the fact that it is the estate of Battell that is to be distributed, not the estate of Mrs. Stoeckel. It is the will of Battell that is to be construed and not the will of Mrs. Stoeckel. In unequivocal terms the will provides that the trustees should assign, transfer and pay over the principal of the trusts to such person or persons as are then by law the lawful heirs of his niece in such shares and proportions as they would by law inherit from her under the law of descent affecting the distribution of his estate. Since the will provides for a gift over to a class on the termination of the intermediate estate of the niece and the will contains no express direction to the contrary, the members of the class and the shares each take must be determined by the applicable statute, — the one in effect as to his will and his estate at the time of her death (New York Life Ins. Trust Co. v.Winthrop, 237 N.Y. 93; Matter of Winslow, 259 N.Y. 550;Matter of Devoe, 171 N.Y. 281; Matter of Waring, supra).

It has properly been said that the will exhibits skillful draftsmanship. Great care and meticulous accuracy are exhibited in its preparation and wording. There can be no doubt that the testator knew and said exactly what he desired to say. When he said "the law" he meant "the law" and he neither said nor meant that distribution should be made according to some scheme which was not "the law" in effect at that time. He was providing for the distribution of his own property, not that of his niece and not on any theory "as if" it were that of his niece. He intended that distribution of his property should be made according to the provisions of the law in effect at the time of the death of the niece, if she should die without issue, to her lawful heirs at law under such applicable law. He gave the cestui que trust no control over the fund and no power to dispose of it. He carefully refrained from providing that the property should be distributed under any power of appointment from her. The will permits of no assumption that the deceased intended that the distribution of his property should be made in accordance with the provision of some law which in specific terms was not in effect as to his will or his property at the time of Mrs. Stoeckel's death. The law of descent at the time the will was made and at the time of the testator's death, of which he was charged with knowledge, would have prohibited the passing of any part of his property to appellant.

What, then, is the applicable law? It is not that contained in the provisions of chapter 229 of the Laws of 1929, as amended by chapter 174 of the Laws of 1930 (as the Surrogate held), but, on the contrary, it is the law in effect on August 31, 1930. That is so by the express mandate of the Legislature. Section 21 of chapter 229 of the Laws of 1929 provides in express terms "that the provisions of sections * * * six" [embracing sections 80-88 of the Decedent Estate Law] * * * "ten" [amending section 314 of the Surrogate's Court Act] * * * "shall apply only to the estates or wills of persons dying after August thirty-first, nineteen hundred and thirty," but the Legislature did not stop there. To make it doubly clear that there could be no possible doubt as to its intent and purpose and to foreclose any possible construction by the courts that would defeat that intent, the Legislature further added "and the provisions of law affected by such sections in force prior to the taking effect of this act shall apply to the estates and wills of all persons dying prior to September first, nineteen hundred and thirty, with the same force and effect as if they were not hereby amended." Section 14 of chapter 174 of the Laws of 1930 contains provisions in specific terms to the same effect. There is nothing in that language that those who read can fail to understand and no opening is left for construction such as is sought by appellant in this case. The will was made and the testator died long prior to August 31, 1930. As we have said before, it was his estate to whose distribution applicable law must be applied. By the express mandate of the statute the law in effect prior to August 31, 1930, is the only law in effect applicable to the distribution of the corpus of the trust in question and requires distribution of the fund to respondents. Nothing to the contrary has been said inMatter of Waring (supra).

There remains a question argued in the Appellate Division which relates to commissions claimed on behalf of a deceased executor. Upon the argument of the present appeal we were advised that all objections to such commissions have been withdrawn. We regard the question as academic and accordingly have not considered it.

The order should be affirmed, with costs to all parties filing separate briefs payable out of the estate, and the motion to dismiss the appeal should be denied.