151 Misc. 841, In re Weil's Will

Citation:151 Misc. 841, 272 N.Y.S. 477
Party Name:In the Matter of the Estate of HENRY WEIL, Deceased.
Case Date:June 13, 1934
 
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Page 841

151 Misc. 841

272 N.Y.S. 477

In the Matter of the Estate of HENRY WEIL, Deceased.

Surrogate's Court, Kings County.

June 13, 1934

Proceeding for construction of will.

Proceed accordingly.

SYLLABUS

The testator left his residuary estate in trust until the death of the trustee and until the youngest grandchild of his named eldest daughter living at the time of his death should arrive at the age of twenty-one years, one-fourth part of the income to be paid to his eldest daughter and upon her death to her grandchildren in equal shares, one-fourth part to his second daughter until her remarriage, after which she was to receive a smaller sum per month, the overplus to go to her son, and in case of her death all of her one-fourth part of net income was to be paid to the son, one-fourth part to a third daughter and in the event of her death to her appointee, and the remaining one-fourth part of the income to his youngest daughter and in case of her death to her child. At the termination of the trust the principal was to be divided into as many shares as would "equal the number of my children then living, together with those who may have died leaving a child or children, their lawful issue," and each share was to be paid over to each of his children then living, and in case of the death of any, or either, of his children "the net share which the one so dying would have received, if living shall be paid to the child or children of such deceased, if any." Testator also provided that in computing the shares of the principal, account should be taken of the sums advanced by him in his lifetime to the daughters, and deducted from the respective shares before distribution.

The intention of the testator gathered from the reading of the will as a whole was to effect an equality among the four branches of his immediate family. He withheld possessory enjoyment of the estate to allow the grandchildren of the oldest daughter to reach the age of twenty-one years, commonly supposed to coincide with the age of discretion.

In the direction as to the division of the principal "into as many shares as shall equal the number of my children then living, together with those who may have died leaving a child or children, their lawful issue," the words "child" or "children" cannot be given their primary significance as immediate descendants. To do so would be to say that the testator had believed that his daughters, who at the time of the execution of the will were past forty-five years of age, would have issue. The testator realized the improbability of this since he disposed of the income of the trust following the daughters' deaths to the eldest daughter's grandchildren, to the son of his next eldest daughter, to the third daughter's appointee and to the youngest daughter's child. Therefore, the testator must have intended that the ultimate distributees cover the progeny of others than his immediate children.

The fact that the only daughter of the testator's eldest daughter predeceased her mother does not prevent that branch of the family from taking a share in the estate where such daughter left issue, now living. By adopting the interpretation that the word "children" means "descendants" in the phrases "have died leaving a child or children, their lawful issue" and "shall be paid to the child or children of such deceased, if any," intestacy is avoided wherever any descendant of one of the testator's children is living and the testator's dominant purpose of equality among the four branches of his family is attained.

The trust principal will be divided into three shares, being the number of children living at the termination of the trust together with those who died leaving a descendant.

The death of one of the grandchildren of the eldest daughter prior to the termination of the trust does not entitle her estate to a share since the remainder was to be paid in the event of the predecease of a particular daughter of the testator "to the child or children of such deceased, if any," and the last two words must mean "any living at the time of distribution" and not "if any ever lived." The gift is one to a class and is payable, therefore, only to the persons answering to the description at the time of possession. Moreover, in this way the testator's intention to limit beneficial enjoyment of the principal to those possessing his own blood is effectuated.

In determining the amounts chargeable to the second eldest daughter's branch of the family a certain indebtedness in the sum of $ 10,000 listed in the testator's account book is not chargeable against her family's share where the testator failed to charge interest on this item in accordance with his desire not to charge interest on their borrowings and to treat his daughters equally, and where he wrote at a later date "all previous advances not charged, counted as a gift."

Page 842

COUNSEL

Watson & Willguss, for the petitioner Adele S. Cootes.

Wingate & Cullen, for Henry W. Butler.

Winthrop, Stimson, Putnam & Roberts, for Katherine McCulloch.

Cadwalader, Wickersham & Taft, for Ethel Adelaide Field, individually and as executrix of Thomas Field, deceased.

Powell Crichton, for the Central Hanover Bank and Trust Company, as administrator d. b. n. of Carlie Aline Didrichsen, deceased.

Sage, Gray, Todd & Sims, for the Seamen's Church Institute of New York.

Mitchell, Taylor, Capron & Marsh, for the City Bank Farmers Trust Company, as executor, etc., of Julia Shaw, deceased.

Page 843

WINGATE, S.

[272 N.Y.S. 479] The will, the interpretation of which is the subject- matter of the present proceeding, was executed on June 28, 1897, at a time when the testator was upwards of eighty-five years of age. He died on January seventh of the following year and the instrument was admitted to probate twenty days later.

After general bequests aggregating $403,500 and the devise of certain real property, he directed the erection of the residue of his estate into a trust, which was to continue 'until the death of my said executor and Trustee * * * and until the youngest grand child of my daughter Caroline living at the time of my death [said grand child being the child of Richard Sibley and of the said Caroline's daughter] shall arrive at the age of twenty-one years.'

Disposal of the income of the trust during its continuance was directed in the 'sixth' item of the will, and was given 'One Fourth Part * * * to my daughter Caroline W. Field, and in case of her death to her grand children in equal shares.

'One Fourth Part thereof to my daughter Celia F. Wiley and in case of her death to her child.

'One Fourth Part thereof to my daughter Julia Shaw, and in case of her death to whomsoever she may appoint by Will, or other instrument in writing to receive the same.

'* * * One Fourth Part thereof to my daughter Sarah until she marries again, when and from which time she shall receive the sum of Four Hundred (400) Dollars a month only, the balance of such one-fourth part shall then and thereafter be paid to her son Harry Butler; and in case of her death, all of her One fourth part of net income shall be paid to him.'

The remainder is distributed by the succeeding item, and since the present controversy centers upon its meaning, it will be quoted in full. It reads:

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