In re Russell

Decision Date01 October 1901
Citation61 N.E. 166,168 N.Y. 169
PartiesIn re RUSSELL et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, Second department.

In the matter of the accounting of Euphemia D. Russell and others, executors of James Russell, deceased. From an order of the appellate division (69 N. Y. Supp. 563) affirming a decree of the surrogate's court on objections by James K. Black, administrator of Elizabeth D. Black, deceased, Euphemia D. Russell and others appeal. Affirmed.

The proceeding involved the construction of the residuary clause of the will of said James Russell, who died in the month of January, 1888. That part of the will which is the subject of this controversy reads as follows: ‘Sixth. All the rest, residue, and remainder of my personal estate, and the net proceeds of the sales of the rest, residue, and remainder of my real estate, owned by me individually or with my co-partner, Edward Tracy, or others, I give, devise, and bequeath to my wife and my children, to be divided equally between them, share and share alike; that is to say, to my wife one share, to each child an equal share with my wife. Should any of my children have died, leaving lawful issue, such deceased child's share to be given to such issue. Seventh. For the purpose of such distribution of my estate among my wife and children, I fully authorize and empower my executors and executrix hereinafter named, or such of them as shall qualify, and the survivors or survivor of them, to sell and dispose of any and all my real estate at public or private sale at such time or times within a lawful period and on such terms as they shall deem most advantageous to my estate, and to execute and deliver to the purchaser or purchasers thereof good and sufficient deeds of conveyance thereof, and to do each and every act and thing lawful and necessary for them to carry out and complete said sales. I also authorize my executrix and executors hereinafter named to invest and reinvest the moneys of my estate until its distribution, such investments to be on improved real estate in the city of New York, or bonds of the United States government, or New York state or city bonds. The net income of my estate until its distribution I direct to be divided equally between my wife and children, share and share alike. Having, from my long acquaintance and association in business with my co-partner, Edward Tracy, a high opinion of his experience, integrity, and judgment, I would recommend to my other executors to listen and give great weight to his suggestions and advice in the sale and disposition of my real estate, particularly in the sale of the property owned by the firm of Tracy & Russell.’ The deceased left, him surviving, his widow and five children. Elizabeth D. Russell, one of the children, married James K. Black, the petitioner, on the 28th day of January, 1891, and died at Belfast, Ireland, on the 9th day of December, 1892, without issue, and intestate. The present controversy involves the disposition which should be made of her share of the residuary estate. Ancillary letters of administration were issued to her husband in this state, and he instituted these proceedings for an accounting, claiming that the distributive share of the residuary estate given by the will to his deceased wife should be paid to him as her husband and personal representative.John F. Dillon and Edward H. Westerfield, for appellants.

Samuel Phillips Savage, for respondent.

O'BRIEN, J. (after stating the facts).

The provisions of the will of James Russell, disposing of his residuary estate, suggest several questions that need not be discussed, since counsel on both sides are in entire accord with respect to their proper legal solution. A statement of the questions and points as to which they agree will, however, tend to place the question with respect to which they differ in a clearer light. If I have correctly comprehended the arguments of counsel, they agree upon the following propositions that are involved in the case: (1) That under the terms of the will there is an equitable conversion of real into personal estate, and the gift is a gift of personal property, subject to the operation of the rules of law governing the devolution of personal property. (2) That the interest of the widow and each child vested upon the death of the testator. (3) That the title to the residuary real estate descended to the heirs at law, subject to the execution of the power of sale in the will. (4) The will contemplates a division and distribution of the proceeds of real estate directed to be sold and converted into money at some future time, depending upon the reasonable discretion of the executors. We see no reason to dissent from any of these propositions. They are sustained by abundant authority, and, assuming them to be reasonable in themselves, and sound in point of law, we may proceed to examine the important question with respect to which there is a radical difference of views between counsel. The courts below have determined that the husband was entitled to the distributive share of the residuary estate which his wife would be entitled to receive if living at the time of distribution. The learned counsel for the executors, who have appealed from that decision, contends very earnestly that the share of the deceased daughter passed upon her death to the surviving members of her family; that is, to the widow and the four children who survived. The fundamental proposition upon which he has constructed a very able argument is that the gift contained in the residuary clause of the will was not to the widow and children distributively or as tenants in common, but collectively, and as a class, which was subject to be changed by the death of the members of the class before the time for distribution arrived; and that the daughter, having died before that time, had no interest in the fund which could pass to her husband or was transmissible. On the other hand, the counsel for the husband contends that the widow and children took the residuary estate under the will distributively and as tenants in common, in equal shares, which vested in them upon the death of the testator, and the interest of each was from that time alienable and transmissible. It should be observed here that the learned counsel for the appellants admits that the interests of the widow and children vested upon the testator's death, but was subject to be devested and changed by the death of any of them, and the consequent diminution of the class, which he contends took the fund collectively. Thus it will be seen that his entire argument rests upon the proposition that the gift is to a class, and not to individuals distributively. If correct in his premises, his conclusion must necessarily follow.

Whether a devise or bequest in a will is to a class or to the individuals as tenants in common must depend upon the language employed by the testator in making the gift. All the provisions of the will may be consulted, and sometimes aid may be sought from the situation and relation of the parties. In this case there is nothing in the will, outside of the residuary clause itself, that throws any light on the question. I have not been able to find in any of the adjudged cases any attempt to define or formulate with much accuracy the language or circumstances necessary to constitute a gift to a class. Perhaps, from the nature of the question, it is impossible to lay down any general rule, or to do more than to determine every case upon its own facts, and to construe every will with reference to the language employed by the testator and the surrounding circumstances. The language and the circumstances are so seldom identical that it is not often that one case can be determined upon the authority of some other case or class of cases. But there are some principles and canons of construction recognized by all the authorities, which, when applied to the particular case, will ordinarily enable the courts to arrive at a reasonable and just conclusion. When stated and applied to this case, it will be seen that there will be little difficulty in determining the nature and character of the gift to the testator's widow and children, whether collectively as a class or distributively as tenants in common. A gift to a class has been defined by a recent decision of this court to be a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or in some other definite proportions, the share of...

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28 cases
  • Shufeldt v. Shufeldt
    • United States
    • Washington Supreme Court
    • June 25, 1924
    ... ... relationship to the parties named in the testament, his ... disposition as evidenced by provisions to be [130 Wash. 260] ... made for them and the general trend of his benevolences, as ... disclosed by the testament: In re Russell, 59 A.D ... 242, 69 N.Y.S. 563, affirmed 168 N.Y. 174, 61 N.E. 166. It ... appears from an examination of Shufeldt's will that, in ... general, the objects of his bounty were the members of his ... own family. He gave no legacies to those who can be said to ... have ... ...
  • Peck v. Peck
    • United States
    • Washington Supreme Court
    • December 5, 1913
    ... ... principle in each of the following decisions, in which the ... exact question here involved was presented and decided ... adversely to the contention of the appellants here: In re ... Murphy's Estate, 157 Cal. 63, 106 P. 230, 137 Am ... St. Rep. 110; In re Russell, 168 N.Y. 169, 61 N.E ... 166, 167; Herzog v. Title Guaranty & Trust Co., 177 ... N.Y. 86, 69 N.E. 283, 286, 67 L. R. A. 146; Dulany v ... Middleton, 72 Md. 67, 19 A. 146, 149. See, also, 30 Am ... & Eng. Encyc. Law (2d Ed.) p. 718; 40 Cyc. p. 1473 ... ...
  • Hagood v. Hagood
    • United States
    • Texas Court of Appeals
    • March 25, 1916
    ...mentioned above; and Farnam v. Farnam, 53 Conn. 261, 2 Atl. 325, 5 Atl. 682; Dulany v. Middleton, 72 Md. 67, 19 Atl. 146; In re Russell, 168 N. Y. 169, 61 N. E. 166; In re Harrison, 202 Pa. 331, 51 Atl. 976; Watkins v. Blount, 43 Tex. Civ. App. 460, 94 S. W. 1116; Bill v. Payne, 62 Conn. 14......
  • Cody v. Fitzgerald
    • United States
    • New Jersey Supreme Court
    • April 25, 1949
    ...the remainder interests are placed in the testator's children. Lyons v. Lyons, Sup.1943, 313 Mass. 550, 48 N.E.2d 18; In re Russell, N.Y.1901, 168 N.Y. 169, 61 N.E. 166; 3 Page on Wills, s 1259, p. 693. Cf. Fairly v. Kline, Sup.1811, 3 N.J.L. 322, 325, 4 Am.Dec. 414; Wells v. Bennett, Err. ......
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