In re the Accounting of Whiton

Bergax, J.

Testatrix created in her will a life estate in trust for the benefit of her niece. She provided: 11 After the decease of my said niece ” that “ my estate ” is to be “ distributed ” in accordance with certain paragraphs of the will which followed.

The paragraph that has caused the controversy contains the expression ‘ ‘ I give, devise and bequeath ’ ’ a certain fractional part “ of my estate remaining after the aforesaid trust ”, and continues, “ to my following named cousins, or the survivor or survivors of them, except as hereinafter stated ”,

Seven cousins were named. After the name of Charles Adey, who is one of them, testatrix added this clause: “ if he be living at the time of the decease of my niece, and if not living, then his share shall go to his children ”, who are named. Charles Adey survived the life beneficiary.

Three of the named cousins survived the testatrix but died before the life beneficiary. The question here is whether their shares vested at the time of the death of testatrix. The Surrogate held that they did not, and that, therefore, because they did not survive the life beneficiary, their heirs have no interest in this part of the estate which is to be divided among the named cousins who did survive the life beneficiary. One of the heirs of Elizabeth Ely Johnson appeals.

When the draftsman of a New York will uses a term like “ I give # * * my estate remaining after ” a certain event, to a group of persons “ or the survivor or survivors of them ” he is bound to expect, if he reads the cases on the subject, that the court will hold that the time-test of who may be the ‘ ‘ survivor or survivors ” is the death of the testator and not the happening of the event.

A good initial argument can be made that logically the rule of construction ought to be the other way. Indeed, the New York rule has been criticized, not merely as “an extreme application of the constructural preference for early indefeasibility ”, but as a rule which follows “ The older English cases ” in this respect, and a rule, moreover, which is honored only in the minority of States. (2 Powell on Law of Beal Property, § 328, pp. 723, 724.)

But such as the rule is we feel required to follow it because the contextual indications of an intent to postpone vesting in the cousins until the death of the niece in the will before us are not clear enough or strong enough to take this will over into a class of recognized exceptions to the general New York rule.

A few cases will indicate how solid the rule is. In Matter of Bolton (257 App. Div. 760) the testator gave $20,000 to his executors in trust "with directions to pay the income to his wife. At her death or remarriage the will provided that “ I give and bequeath the same to ” his named children “ or the survivors of them ”. This court held, per Fosteb, J., that there had been a vesting at the time of testator’s death so that after the wife’s death the shares of two sons who had died after the husband, but before the wife, were payable to the personal representatives of their respective estates. There was affirmance (282 N. Y. 728).

The New York rule stems largely from an early and frequently cited case decided in 1840 (Moore v. Lyons, 25 Wend. 119). The testator had given the “negro-woman Mary” a life interest in real estate. The will provided that “ from and after her death, I give ” the real estate to certain named persons “ or to the survivors or survivor of them ”. It was held upon a thorough examination of the English cases disclosed in the opinion that the estate vested in the remaindermen when the testator died and not when the life beneficiary died.

The rule had become so erystalized by 1885 that Judge Dan-forts in Matter of Mahan (98 N. Y. 372, 376) remarked that the general rule is “ well settled ” that if “ there be a direct gift t» legatees, a direction for payment at the happening of a certain event shall not prevent its vesting ’ ’. In the same direction see Healy v. Empire Trust Co. (276 App. Div. 305, affd. 301 N. Y. 620).

When there are clear indications of an intent for a later vesting that intent will be effectuated by the court; but in equivocal circumstances the court would follow the general New York rule favoring a choice for an earlier rather than a later vesting.

It seems to us that the case which respondents make on intent does not rise to a level which would require vesting to be postponed to the death of the beneficiary rather than to occur at the death of the testatrix. The strongest argument in support of the later time of vesting is the fact that in providing for her cousin Charles Adey the testatrix added the condition “if he be living at the time of the decease of my niece, and if not living, then his share shall go to his children ”.

This, the respondents argue, shows that the testatrix believed that the benefits she was giving to her cousins would not vest until the death of her niece because she provided for Charles Adey’s children specifically in the event Charles Adey did not survive the niece as life beneficiary. If she knew he would become vested on her own death this, it is argued, would have been unnecessary.

But, of course, she may also have had in mind preventing in Charles Adey’s case any disposition of a vested interest against the welfare of his children between the death of the testatrix and that of the life beneficiary — or postponing his choice in this respect as long as possible.

What the testatrix, or the draftsman of her will, believed to be the legal effect of giving a fractional part of her “ estate remaining after the aforesaid trust ”, would give some help in construing her language as to the time the estate thus given was to become vested.

But her notions of what the legal effect was is not necessarily controlling in the case of words of well-worn significance. If a draftsman uses words to which a meaning is regularly attributed by the court he runs a considerable risk that the words he uses will be construed again that way even though he may have had something else in mind.

But even though the testatrix used words in the case of Charles Adey and his children which suggests she felt there might be no vesting until the death of the life beneficiary, she used#other contextual language which leaves in doubt, at least, her opinion as to the time when there would be a vesting of the part of her estate “ remaining after the aforesaid trust ”.

In the ninth paragraph of her will she provided for the distribution of a further fractional part of her estate “ remaining after the aforesaid trust ”. As to two of the beneficiaries she provided where their share should go if they died before the life beneficiary. As to all the rest of that class, the will continued, if any shall<£ die before my said niece, then her share shall lapse ”. This seems to indicate that the testatrix believed that there would be a vesting on her own death, since if she believed vesting would be postponed until the death of the life beneficiary it would have been quite unnecessary to provide for a lapsing of benefits in the case of a death before that time.

Thus we have two different and inconsistent views possible to be drawn from the context of the will as to the understanding testatrix had of the legal effect of the words she used and in such a case it is usual to resolve the doubt by giving the words their usual judicial meaning.

Whatever testatrix may have had in mind about Charles Adey’s interest in relation to the survivorship of his children, she imposed no such limitation or restriction on vesting of the interest of the other cousins, and especially none in the case of Elizabeth Bly Johnson whose rights are asserted on this appeal. By the actual terms she used as to her it would be reasonably expected under New York law that survivorship of the testatrix herself would be the test of vesting, and nothing she said specifically as to Elizabeth Bly Johnson whittled down that right or suspended the vesting.

If we look into earlier contextual language we see the use of words, highly consistent with the New York rule, that “ after ” the decease of the life beneficiary “ my estate ” is to be “ distributed ” as thereafter directed. This seems to indicate distribution after the death of the life beneficiary of an earlier vested interest rather than a vesting as of that time.

The language employed was cast in terms which have been construed to mean a vesting on the testatrix’ death. A debatable case of intent — one that can be argued reasonably both ways as this is — does not bring the case out of the rule.

The decree should be reversed and the proceeding remitted to the Surrogate’s Court for further proceedings in accordance with this opinion, with costs to appellants payable from the estate.