Roe v. Vingut

Citation117 N.Y. 204,22 N.E. 933
PartiesROE et al. v. VINGUT et al.
Decision Date26 November 1889
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, first department.

Action by Alfred Roe and another, executors of Elizabeth F. Floyd, deceased, against George T. Vingut, individually and as administrator, and others, to construe the will of testatrix. Decree for plaintiffs, affirmed in general term, and defendants again appeal.

Joseph H. Choate, for appellants.

John J. Macklin and William C. Beecher, for respondents.

PECKHAM, J.

This action was commenced by the plaintiffs, who are the executors of the will of Mrs. Elizabeth F. Floyd, deceased, and trustees under its provisions, to obtain a construction of that instrument. At special term the court held that the trust provided for therein was valid, and that it continued until the youngest grandchild named in the will arrived at age, or his death before that event, and until the death of George T. Vingut, and provision was made for the payment of the accumulations spoken of in the will. The general term affirmed the judgment entered upon this decision, with a slight modification, by which it struck out the provision in that judgment permitting the trustees to sell the real estate which was unproductive; it being held that there was no such power of sale granted to the trustees. From the affirmance of the general term the defendants have appealed here.

Mrs. Floyd died in November, 1885, leaving the will in question. She was possessed of quite a large estate, and she had but one child, a married daughter, the wife of the defendant George T. Vingut. The daughter was, when the will was made and when the testatrix died, the mother of five children, Benjamin Van Horne Vingut being the youngest, and he was born December 23, 1879, and the will was made July 30, 1881. After the commencement of this action, and before the entry of judgment therein, the daughter, Mrs. Vingut, died, leaving the five children surviving her. Her husband, one of the defendants, was appointed her administrator, and the action was continued against him in such capacity, as well as individually.

The questions to be determined here arise out of the provisions of the sixth clause in the will of Mrs. Floyd, which clause I have subdivided, for convenience of description, into seven subsections. The clause in question reads as follows: (1) Sixth. I give, devise, and bequeath to my executors hereinafter named all real and mixed estate of which I may die seised or possessed, in trust, nevertheless, to have and to hold the same during the respective lives of my son-in-law, George Thomas Vingut, and my youngest grandchild, Benjamin Van Horne Vingut, now living, and to receive the rents, issues, and profits thereof, and the accumulations arising therefrom; and, after payment of all taxes, assessments, and of so much money as may be necessary for repairs, insurance, or improvements or betterments of any or all of my real estate, to invest the balance remaining after such payments in productive real estate in the city of New York, for the benefit of my grandchildren who may be living at the time of my death, during their respective minorities, and for the benefit of such other grandchildren as may be born of my daughter, Sarah Augusta Vingut, after my death, during their respective minorities.’ (2) ‘To apply the said rents, issues, and profits of said real estate to the use of my said grandchildren during their respective minorities, in such sum or sums as in the judgment of my executors hereinafter named may be sufficient for the education and support of each or any of them during their respective minorities; but no payment shall be made unless my said executors shall be satisfied that there is not sufficient income from the estate of my said daughter, Sarah Augusta Vingut, for the support and education of my said grandchildren.’ (3) ‘And on the arrival of my youngest grandchild at the age of twenty-one years, and on the death of my son-in-law, George Thomas Vingut, I give, devise, and bequeath to my grandchildren who may then be living, and their heirs forever, all my real estate, wheresoever situated, of which I shall die seised, or which may be purchased by said executors after my death, as provided for in the sixth clause of this, my will, share and share alike, as tenants in common, and not as joint tenants, to have and to hold the same to the said grandchildren and their heirs forever.’ (4) ‘In the event of the death of any of my said grandchildren leaving lawful issue him or her surviving, then the share of such deceased parent shall belong to and become vested in such lawful issue him or her surviving.’ (5) ‘In the event of the death of any or either of my said grandchildren unmarried, then the share or shares of such grandchild or grandchildren so dying shall be equally divided, share and share alike, amongst my remaining grandchildren who may be living at the time of the death of such grandchild or grandchildren.’ (6) ‘I direct and empower my executors hereinafter named, as my said grandchildren shall respectively attain the age of twenty-one years, and my youngest grandchild and my son-in-law may still be living, to pay over to each grandchild, as he or she may arrive at the age of twenty-one years, a proportionate share of the rents, issues, and profits of my estate during the lives of said grandchildren and son-in-law.’ (7) ‘I hereby authorize and empower my executors hereinafter named to rent or lease any part of my said estate for such term or terms of years as in their judgment may seem proper.’ The questions propounded are (1) whether the trust created by the sixth clause is valid; (2) if valid, when does the trust terminate? (3) have the trustees an implied power of sale as to the unimproved real estate owned by Mrs. Floyd at the time of her death? Other questions were stated, not necessary to be here mentioned.

As to the first question. The trust is claimed by the defendant George T. Vingut to be invalid on two grounds: (1) Because of uncertainty and illegality as to the term of its duration; (2) because it is not a trust for any of the purposes authorized by law. The will is a most perplexing one. There are provisions in it which at first blush are so seemingly inconsistent and contradictory that it appears impossible to arrive at a meaning which can be said with any certainty to have been that of the testatrix. While the trusts are in the first subdivision of the sixth clause bounded by two lives in being at their creation, the language thereafter used is such that, if construed without reference to other portions of the will, the trust term is so far extended as to be void; for it is extended until the coming of age of the youngest grandchild, and such grandchild might be born after the death of the testatrix. To adopt the theory of the administrator defendant as to the meaning of the will, and to say that it means to, and does, provide for an illegal extension of the trust term, is to do violence to some of the language of the will, just as much as is done to some of the other language thereof when the trust is construed to be legal. In either event the strict language used in some portions of the instrument must give way, for the purpose of arriving at the meaning of the testatrix, based upon a perusal of the whole document. Upon such perusal, if a general scheme can be found to have been intended and provided for in the instrument, and such general scheme is consistent with the rules of law, and so may be declared valid, it is the duty of courts to effectuate the main purpose of the testatrix. To accomplish such object, the meaning of words and phrases used in some parts of the will must be diverted from that which would attach to them if standing alone, and they must be compared with other language used in other portions of the instrument, and limitations must be implied, and thus the general meaning of all the language must be arrived at. It is very truly observed in the able opinion in this case delivered by the learned judge at general term that, where it can be done without violence to the intention of the testator, one of two possible constructions will be given to a clause which will sustain the intended devise, rather than the one that will defeat it. The intention to create a trust for the benefit of the grandchildren of the testatrix, including those that might be born after her death, is plainly stated in the will. The draughtsman would seem to have been familiar with the rule as to the utmost length of a valid trust term. Such a term...

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  • Becker v. Chester
    • United States
    • Wisconsin Supreme Court
    • 19 Junio 1902
    ...103 Wis. 497, 79 N. W. 786, 74 Am. St. Rep. 885;Dennett v. Dennett, 40 N. H. 498, 550;Fussey v. White, 113 Ill. 637, 643;Roe v. Vingut, 117 N. Y. 204, 22 N. E. 933. A third significant rule, in view of the facts of this case, is this: The state of the law, as understood at the time of the e......
  • Fuehring v. Union Trust Co. of Indianapolis
    • United States
    • Indiana Supreme Court
    • 23 Junio 1945
    ...gift a termination of the trust if Ethel Christine should die before becoming thirty-five (35) years of age. Roe et al. v. Vingut, 1889, 117 N.Y. 204, 22 N.E. 933;Jacoby v. Jacoby, 1907, 188 N.Y. 124, 129,80 N.E. 676; III Scott on Trusts, § 334, pp. 18, 23. Nor would the possibility of chil......
  • Fuehring v. Union Trust Co. of Indianapolis
    • United States
    • Indiana Supreme Court
    • 23 Junio 1945
    ... ... all if the youngest should die before becoming thirty-five ... (35) years of age. In this they are mistaken because the law ... reads into the gift a termination of the trust if Ethel ... Christine should die before becoming thirty-five (35) years ... of age. Roe et al. v. Vingut, 1889, 117 N.Y. 204, 22 ... N.E. 933; Jacoby v. Jacoby, 1907, 188 N.Y. 124, 129, ... 80 N.E. 676; III Scott on Trusts, § 334, pp. 18, 23. Nor ... would the possibility of children to John H. Fuehring after ... the death of the testator sharing in the gift over to his ... children make the ... ...
  • Gilman v. Gilman
    • United States
    • Connecticut Supreme Court
    • 5 Octubre 1923
    ... ... testator, that one of two possible constructions will be ... given to a clause which will sustain the intended devise ... rather than the one which will defeat it." Matter of ... Conger, 81 A.D. 493, 497, 80 N.Y.Supp. 933; Roe v ... Vingut, 117 N.Y. 204, 212, 22 N.E. 933 ... To the ... same effect, see Woodruff v. Marsh, 63 Conn. 135, ... 136, 26 A. 846, 38 Am.St.Rep. 346; Wolfe v ... Hatheway, 81 Conn. 181, 185, 70 A. 645; Nicoll v ... Irby, 83 Conn. 530, 534, 77 A. 957; Bridgeport Trust ... Co. v. Parker, ... ...
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