In re Northrop

Hagarty, J.

The question presented involves the construction of the will of Henry C. Northrip, deceased, particularly the disposition of a trust fund upon the termination of the life estate.

The testator, by the third paragraph of his will, created a trust for the benefit of his son, Herbert R. Northrip, during his life, and provided thatv upon the latter’s death, “ I give and bequeath the principal thereof, together with any accumulated interest thereon, unto Henry C. Northrip and Pearl Northrip, two of the children of said Herbert It. Northrip, or unto the survivor of them; and I direct that the same shall not be paid to them until they, or the survivor of them, shall arrive at the age of twenty-one years. In case the said Henry C. Northrip and Pearl Northrip shall both die before attaining the age of twenty-one years, then and in that event and upon the death of my said son Herbert R. Northrip, I direct that the principal of said trust fund shall be added to my residuary estate.”

The testator died on the 11th day of March, 1916, and was survived by his son, the life beneficiary, who died on the 14th day of May, 1938. The remaindermen, however, predeceased the testator. Henry C. Northrip, the grandson, died on the 9th day of April, 1914, leaving him surviving three children, the respondents here. Pearl D. Northrip died on the 24th day of January, 1916, unmarried. The fund is now claimed by the children of Henry C. Northrip, on the one side, and the residuary legatees named in the will, on the other.

The learned surrogate was of opinion that section 29 of the Decedent Estate Law was applicable and, accordingly, construed the pertinent provision of the will as vesting the remainder in the respondents as beneficiaries substituted by law for their deceased father. I am constrained to disagree.

Upon termination of the life estate, the testator provided that the remainder go to his grandchildren “ or unto the survivor of them.” In order to take, therefore, the grandchild Henry C. Northrip had to survive. The rule of general application is that survival refers to the survival of the testator. (Moore v. Lyons, 25 Wend. 119; Connelly v. O’Brien, 166 N. Y. 406, 408, 409; Matter of Banker, 223 App. Div. 496; affd., 248 N. Y. 596.) The fact is that this grandchild predeceased not only the testator and the life tenant, but also his sister, Pearl Northrip, who also predeceased the testator. Section 29 of the Decedent Estate Law may not be invoked to substitute the children of Henry C. Northrip in view of the intention of the testator that the remainder should fall if the contingency of survivorship was not fulfilled. (Matter of Neydorff, 193 App. Div. 531.)

While the subsequent provision in the same paragraph that the corpus be added to the residuary estate in the event that the grandchildren should both die before attaining the age of twenty-one years is ineffectual because they did attain their majority, it is evidence of the intention of the testator that the corpus pass as residue and, in accordance with the well-settled rule, it must be deemed the intention of the testator that the lapsed remainder should so. pass under the residuary clause. (Matter of Benson, 96 N. Y. 499, 509, 510; Langley v. Westchester Trust Co., 180 id. 326, 329, 330; Albany Hospital v. Albany Guardian Society, 214 id. 435; Matter of Sinnott, 163 App. Div. 817; affd., 214 N. Y. 667; Matter of Barrett, 132 App. Div. 134.)

The decree construing the “Third” paragraph of the will and the “Second” paragraph of a codicil thereto should be reversed on the law, with costs to all parties, payable out of the estate, and the matter remitted to the Surrogate’s Court for the making of a new decree providing that the trust fund pass under the residuary clause in accordance with the foregoing views.

Lazansky, P. J., and Close, J., concur; Johnston, J., with whom Taylor, J., concurs, dissents in opinion and votes to affirm the decree.