Citation Numbers: 196 Misc. 451
Judges: McCann
Filed Date: 10/1/1949
Status: Precedential
Modified Date: 2/5/2022
A petition has been filed in this court for the construction of the will of Sarah Hobson, deceased. The construe
Sarah Hobson died on the 5th day of November, 1926. Her last will and testament was admitted to probate in this court’ March 8,1927, and her daughter Lillian M. Gedney was granted letters testamentary. She was survived by two daughters, Lillian M. Gedney and Phoebe A. Crosby.
George Hobson, Sarah Hobson’s husband predeceased her. He was the father of Lillian M. Gedney and Phoebe A. Crosby. He had been married before and by this previous marriage had three children, Frank Hobson, unmarried, Manley Hobson and Harriet Hobson McIntyre.
Phoebe A. Crosby died testate, a resident of this county, March 5,1943. She was survived by Lillian M. Gedney, a sister of the whole blood and the following nephews and nieces of the half blood: Henry McIntyre, George McIntyre, Lottie Bixby and Cora Wheat, children of Harriet Hobson McIntyre, a half sister who predeceased Phoebe Crosby; Albert Hobson and Katherine Hobson Allen, children of Manley Hobson who also predeceased Phoebe Crosby.
Lillian M. Gedney died testate November 21, 1946, a resident of the county of Yates. She was survived by the same nephews and nieces of the half blood as survived Phoebe Crosby.
Phoebe Crosby, by her will gave to named persons and institutions designated amounts of money. She gave the residue of her estate to sixteen named individuals. Included in these are four of the six nephews and nieces of the half blood of Phoebe Crosby, namely George McIntyre, Cora Wheat, Albert Hobson and Henry McIntyre.
It is a cardinal principle in construction of wills that testator’s intent shall be given effect, if ascertainable. (Matter of Silsby, 229 N. Y. 396, 402.)
A testator’s intention is to be collected from the whole will taken together, not from detached portions alone. (Matter of Title Guar. & Trust Co., 195 N. Y. 339, 344.) It is the duty of the court to “ interpret, not to construct; to construe the will, not to make a new one ”. (Simpson v. Trust Co. of America, 129 App. Div. 200, 203; Herzog v. Title Guar. & Trust Co., 177 N. Y. 86.)
Section 40 of the Beal Property Law reads as follows: “ A future estate is either vested or contingent. It is vested, when there is a person in being, who would have an immediate right to the possession of the property, on the determination of all the intermediate or precedent estates. It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain.” It is a primary tenet of construction that vesting at the earliest possible time consistent with the express intention of the testator is favored. (Matter of Evans, 165 Misc. 752, affd. 258 App. Div. 1037, affd. 284 N. Y. 571.)
At the time of the death of Sarah Hobson was there a person in being who would have an immediate right to the possession of the property, on the determination of all the intermediate or precedent estates? We think that there was. That person was Phoebe A. Crosby who survived the testatrix, but who died in the spring of 1943, prior to the death of the life tenant, Lillian M. Gedney, whose death occurred November 21, 1946. In consequence this court holds that the remainder vested in Phoebe A. Crosby. Immediate possession and enjoyment of such unexpended remainder was postponed to let in the intervening life estate of Lillian M. Gedney.
We now come to the question of the intention of the testator where she says “ I hereby give, devise and bequeath said
In consequence thereof this court holds that there was an absolute gift to Phoebe A. Crosby and the unexpended portion remaining at the time of the death of the life tenant Lillian G-edney should go to and become part of the estate of Phoebe A. Crosby.
Submit decree accordingly.