Judges： Eutnam, Herrick, Mayham
Filed Date： 12/15/1895
Status： Precedential
Modified Date： 11/12/2024
Wo are called upon to review the decree of the surrogate of Warren county stating and settling the accounts of Stephen Brown and Dwight Merriman, as trastees under the will of Abraham Wing, deceased, in which decree the surrogate gave a judicial construction to the provisions of said instrument.
The will bequeathed to Frances A. Wing, wife of the testator, bis mansion house and lot and certain personal property therein during the time she should remain his widow, and also an annuity of $3,000 ; to his daughter, Mary W. Merriman, a life estate in a farm in Michigan, with remainder to her children, and tho rest of his property to his executors in trust for the uses and purposes in the will mentioned. The instrument"contained the following provisions : “Fourth. I. hereby authorize and direct my executors to apply and appropriate the avails and proceeds of said property and income therefrom to the uses and purposes following, to wit: 1st. To pay my funeral expenses and all my just debts. 2nd. To pay the above-mentioned annuity to my wife. * 3rd. To furnish whatever money may be necessary, in the discretion of my executors, for
“ Fifth. I direct my executors on the death, or, if she shall marry, then on the marriage, of said Frances A., to convert said mansion house and lot and any other real estate remaining undisposed of (if any) into personal property so that my whole estate shall become personal property, and, if my sister Mary Ann shall then be living, to set apart the sum of ($5,000) five thousand dollars therefrom and invest the same as a fund, out of which and the income therefrom my executors shall provide for her support and maintenance during her lifetime, as above directed, asid funeral expenses, and whatever may not be used and appropriated for that purpose I give and bequeath as follows: If my daughters shall be both living, one-lialf to each of them; if one daughter only shall be then living, one-lialf to her and the other half to the children of the deceased daughter, and if both daughters shall be deceased, then one-lialf to the children of one daughter and the other half to the children of the other daughter, and the balance (after deducting-said $5,000), and the whole if said Mary Ann shall not survive the death or marriage of said Frances A., shall be divided into two-equal parts, share and share alike, by my executors and be disposed of as follows: 1st. If neither of my said daughters shall be then
The testator died on the 13th day of June, 1873, leaving surviving him his widow, Frances A., his daughter, Mary YY., wife of Dwight Merriman, and Tracy D. Merriman, Nellie YY. Merriman
The questions submitted to us pertain exclusively to the one-half of the estate bequeathed to Mary "W. Merriman and her children.
Tracy D. Merriman, one of the children of said Mary "W., died intestate, never having married, on January 19, 1880; Mary "W. Merriman died June 10, 1892, and her husband, Dwight Merriman, was appointed temporary administrator of her estate. Howard L. Merriman, another child of said Mary "W., died August 4, 1893, and is represented by "William II. Witliington, as administrator. Hence, of the family of Mary "W., appellant, Ella "W. Sharp, her daughter, and Dwight Merriman, her husband, only remain.
The surrogate determined that on the death of the testator the three children of his daughter Mary took a vested interest in the principal of one-half of the estate ; and that one-third of the net income thereof, after the death of said Mary "W., belonged to said Ella "W. Sharp, ono-third to Witliington, as administrator of Howard L. Merriman, and one-tliird to Dwight Merriman individually, as father and next of kin of Tracy D. Merriman, deceased.
The appellant, Sharp, contends that under the provisions of the will the principal of the estate bequeathed to the children of Mary "W. will not vest until the death of the widow of the testator ; that the income thereof did not vest in such children until the death of said Mary "W.; that she, said appellant, as survivor of the children of Mary "W., will be entitled to the whole of said principal; that the income in the will directed to be paid to the children of Mary "W. in consequence of the death of Tracy and his mother, after her death, was payable to said Ella and her brother Howard, and on his death all of said income belonged to her.
It will bo seen by the above-quoted provisions of the will that the legal estate of the trustees ends as to the one-half part of the estate bequeathed to Mrs. Merriman and her children with the lives of the widow and the daughter Mary. On the termination of these lives the trustees are to divide such one-half part of the estate, and their legal interest therein ceases. Hence, subject to the estate of the trustees under the will, there is a remainder not bequeathed to them,
There are certain well-settled principles which it is proper to bear in mind at the outset of our investigation.
One is that the law favors the vesting of estates. A remainder is not to be considered as contingent in any case -where it may be held vested consistently with the intent of the testator. (Moore v. Lyons, 25 Wend. 119-144.)
But while the law favors the vesting of legacies as soon as possible after the death of a testator, the intention of the deceased, as deducible from the language and provisions of the will, must be carried out. (Bowditch v. Ayrault, 138 N. Y. 222, 228, 229.)
It has also been held that where a remainder is bequeathed, the enjoyment of which is postponed, time enters into the substance of the gift when its existence depends upon a contingency that may or may not happen ; but where the only contingency is a deatli certain to occur, and the legatees are known and fixed, a postponing clause should bo regarded as relating only to the period of actual enjoyment. (Matter of Young, 145 N. Y. 535-539; Bowditch v. Ayrault, 138 id. 229, 230; Moore v. Lyons, 25 Wend. 143, 144.)
It is urged by said appellant that in the will under consideration there is no direct gift by testator to the children of his daughters, but merely a direction to the executors to pay or to divide and pay, on the death or marriage of his widow, and on the termination of the life estate of the mother, and hence that the principal of the estate bequeathed to the grandchildren will not vest until the death of Frances A. Wing. But the rule invoked by the appellant is not inflexible, and is subordinate to the primary rule of construction that the intent of the testator, as deducible from the whole will, shall govern. (Goebel et al. v. Wolf, 113 N. Y. 405-412; Matter of Young, supra, 538; Bowditch v. Ayrault, supra, 229; Matter of Seebeck, 140 N. Y. 246.)
It becomes our duty, therefore, to carefully examine the language and provisions of the will under consideration, with a view of arriving at the intent of the testator as to the vesting of the estate bequeathed to his grandchildren.
In the first place, the position taken by the appellant Sharp, that the will "under consideration contains no gift of the principal of one-half of the testators estate to the children of his daughter Mary, except by o■ direction to divide at a future time, is not entirely correct.
In the latter part of the fifth clause the testator says: “ It being my intention and will that my said daughters shall have and enjoy absolutely for their own property during their lives respectively each one-half of the whole income of my estate from the date of my decease, * * * and that the principal * * * shall he equally divided between the children of said daughters absolutely for their own property, subject, however, to the above-provided life estate in the same.” This language imports a present and direct gift of the said principal to his grandchildren, subject to the life estate of their mothers therein, although the enjoyment of such principal, under other provisions contained in the will, is postponed until the termination of the estate of the trustees.
The clause above quoted has, we think, the same effect as if the testator had said “ I will, devise and bequeath the income of said principal sum to my daughters, one-half to each, during their respective lives; and subject to such life estates I will said principal to their children, to he equally divided between them.” If this construction of the language of the instrument is correct, the case is within the principle that where a will evinces an intent to make a direct gift to a legatee a direction for payment after the happening of a certain event does not prevent its vesting at the death of the
But assuming tliat the construction placed upon the language of the will by the appellant Sharp, that it contains no gift to the children of the testator’s daughter Mary except by the direction to his trustees to pay at a future time, is correct, yet, we think, the instrument indicates the intent of the testator that the estate bequeathed to his said grandchildren should vest on his decease.
In the first place the language used by the testator'above referred to, in which he declares it to be his will that his said grandchildren shall have the principal of one-half of his estate subject to the life estate of their mother evinces an intent to make a present and absolute gift to them. Certainly the language used by the testatoi* is not inconsistent with the vesting of the remainder on his death in his said grandchildren, and hence the estate bequeathed to them should not be deemed contingent. (Moore v. Lyons, supra, 144.)
As we have seen, the intent of the testator as to the vesting of his estate, as collected from the provisions of the will, must be carried out.. In the clause above quoted he declares his intent. The declaration is contained in one sentence. It refers to all his estate. It is his intent, he says, that his daughters shall have •— each one-half— the income of all his estate, subject to the provisions in favor of his wife and sister; but no part of the principal, and that such principal shall be equally divided between the children of said daughters absolutely for their own property, subject to the life estates of their mothers. This language indicates an intent to make a direct and absolute gift to the children of his daughters.
The life estates of the daughters commenced on the death of the testator. From his death they were entitled to receive the income of his estate, except such portion as was bequeathed to the widow but not the principal, which the testator gave to the children of his daughters. The appellant Sharp construes the said provision as if it provided that “ the said principal shall be equally divided between the children of said daughters absolutely for their own property,” provided they should survive his widow. Such a construction is unauthorized. The testator does not declare his intent to give one-half of the principal to the survivor or survivors of the children of
It will be noticed that, if the position of said appellant is sustained, if the three children of Mary W. Merriman should die before the widow, the one-half of the estate set apart for said Mary and her children would remain undisposed of on her decease. Also, under the will, had Mary died before either of the children each would have been entitled to one-third of the income of one-lialf of the estate, although the vesting of the estate was contingent upon their surviving the widow. In other words, they would have received the income of U principal which, as the appellant Sharp contends, was not vested in or owned by them and which they might never own.
The fact above referred to, that the testator declared his intent to be that the principal of his estate should be divided among his grandchildren, and did not provide that it should go to the survivor or survivors of them at the time of distribution, is most significant.
Andrews, J., in Goebel et al. v. Wolf (supra, 413), said : “ There is nothing on the face of the will to indicate that the testator contemplated the death of any of his children during minority, or that any of them might not take the equal one-fourth share of his estate on the final division. The gift of the ultimate estate is not, in terms, to his children livioig at the time of the division, or to the survivors of his children, but the division is directed to be made “ among my children, share and share alike.” "Words of survivor-ship were not necessary if the gift, by construction of law, was to the children who should be living at the time of division. But it would have been very natural that words of survivorship should have been inserted to emphasize his intention, if the testator had intended that only children surviving at that time should be entitled to his estate.” Those remarks of the learned judge apply to this case. Here the testator declared his intent and will to be that the principal set apart should be divided equally between the children of his said daughters absolutely for their own property, subject to the life estates of the mothers. There are no words of survivor-ship. The gift is not made to those children of the daughters living at the time of the termination of the life of the widow, but to the children of the daughters, apparently the children living at the time of his death'.
Many late cases decided in our court of last resort might be cited which tend to support our views in regard to the vesting of the estate in question in the grandchildren of the testator.
In Goebel et al. v. Wolf (supra) the will gave an estate, consisting of real and personal property, to trustees, and provided that one-half of the income thereof should be paid to the wife during her life, and, after some provisions unnecessary to state, contained the following-direction to the trustees: “ Immediately upon the arrival of my youngest child at the age of twenty-one years, in case my wife shall not then be living, to divide all my estate, real and personal, and the accumulations of interest equally among my children, share and share alike, after deducting all advances made as above provided to any of my children, so that each of my children shall have and receive an equal share of my estate.” There was in the will no gift, in terms, to the children of the testator. It appeared that one of the four infant children living at the time of the testator’s death had since died under age and without issue. The court held that the gift was not to the children as a class, but that each, on the death of the testator, took a vested remainder in one-fourth of the residuary estate dependent upon the termination of the trust, and that the share of the one who died, with the accumulations of interest thereon, descended to his heirs or next of kin, according to the nature of the property; also, that such descendants were entitled to any income fliat might thereafter accrue during the trust period.
In Bowditch v. Ayrault (138 N. Y. 222) the will devised the
Counsel for appellant Sharp urge that where a class as “ children ” is designated in a devise or bequest, without words indicating that
It requires no citation of authority to show that where there is in a will a bequest to several children who become vested with the property on the death of the testator, said children being thus vested take distributively unless a contrary intent on the part of the testator ajopears in the will. No intent appears in the will under consideration that the children of Mary W. should take as a class or otherwise than distributively. (See Matter of Seebeck, supra; Bowditch v. Ayrault, supra, Goebel et al. v. Wolf supra.)
The remaining question to- be considered is as to the disposition of the income of the estate since the death of Mary W. Merriman and during the lifetime of the widow. The appellant Sharp claims that she was entitled to one-half of such income until the death of her brother, Howard L., and since his death to the whole. The administrator of Howard L. claims one-half of the income since the death of his mother.
If our views above expressed are correct, on the death of Abraham Wing the three children of Mary W. Merriman each became vested with an undivided third part of one-half of his residuary estate, the possession of which, by the provisions of the will, was postponed until the termination of the widowhood of Frances A. Wing and the life estate of their mother, and subject to the estate of the trustees for the period of the lives of said Frances A. and Mary W.
"We think it necessarily follows, from the conclusions above arrived at, that each of said grandchildren, being vested with onetliird of the one-half part of the residuary estate left by the testator, subject to the trust estate and to the payment of interest thereon to Mary W. Merriman during her life, on that payment ceasing, being the absolute owner of such one-tliird, became entitled to the income derived therefrom* and that on the death of any one of such children his representative or next of kin succeeded to his rights. (See Goebel et al. v. Wolf, supra.)
It follows that the decree of the surrogate should be affirmed, with costs against the appellants.
Decree of surrogate affirmed, with costs.