Astor's Will, In re

• Decision Date: 05 April 1957
• Citation: 5 Misc.2d 722,162 N.Y.S.2d 46
• Parties: In re ASTOR'S WILL. In re DINEHART'S WILL. Application for the Appointment of a Successor Trustee under the Last Will and Testament of Malvina Astor, deceased, of trusts created for the benefit of William B. Dinehart; and of the Judicial Settlement of the Accounts of Olive F. Langdon, as Successor Executrix under the Last Will and Testament of William B. Dinehart, deceased continuing Trustee under the Last Will and Testament of Malvina Astor, Deceased, for Trusts created thereunder, one known as the Franklin Dinehart Trust and the other known as the John C. Dinehart Trust, as to those portions of said trusts created for the benefit of William B. Dinehart, now deceased; and for a determination of the construction and effect of disposition of property under the Last Will and Testament of Malvina Astor, deceased. Surrogate's Court, Columbia County
• Court: New York Surrogate Court

Page 46

162 N.Y.S.2d 46

5 Misc.2d 722

In re ASTOR'S WILL In re DINEHART'S WILL Application for the Appointment of a Successor Trustee under the Last Will and Testament of Malvina Astor, deceased, of trusts created for the benefit of William B. Dinehart; and of the Judicial Settlement of the Accounts of Olive F Langdon, as Successor Executrix under the Last Will and Testament of William B. Dinehart, deceased continuing Trustee under the Last Will and Testament of Malvina Astor Deceased, for Trusts created thereunder, one known as the Franklin Dinehart Trust and the other known as the John C. Dinehart Trust, as to those portions of said trusts created for the benefit of William B. Dinehart, now deceased; and for a determination of the construction and effect of disposition of property under the Last Will and Testament of Malvina Astor, deceased.

Surrogate's Court, Columbia County.

April 5, 1957.

Robert F. Meyers, Hudson, for Oliver F. Langdon, as successor executrix of William B. Dinehart, deceased trustee under the will of Malvina Astor, petitioner.

Edward K. Haas, Poughkeepsie, for Aimee F. Moore as executrix of Adda F. Dinehart, deceased.

Carb, Luria, Glassner & Cook, New York City, for Adrian D. Langdon (Albert I. Edelman and Herbert M. Horowitz, New York City, of counsel).

Coffin, Coffin & Inman, Hudson, for Bernice W. Pulver and George C. Inman, as executors etc. of Herbert D. Pulver, deceased (F. Walter Bliss, Albany, of counsel).

John N. McLaren, Hudson, for James G. Pulver (F. Walter Bliss, Albany, of counsel).

Whalen, McNamee, Creble & Nichols, Albany, for State Bank of Albany, as executor of Olive D. Pulver, deceased (Kenneth Creble, Albany, of counsel).

John J. Curran, Chatham, for Nina M. Kell.

R. Monell Herzberg, Hudson, for John C. Dinehart and others (R. Waldron Herzberg, Hudson, Samuel M. Hesson, Albany, and David A. Hendler, Hudson, of counsel).

Thomas P. Kennedy, Hudson, for Harriet L. Dinehart.

Harold E. Fritts, Hudson, and Smith, Pattison, Roberts & Samson, Troy, for William H. Dinehart, as administrator of the estate of Alma Burch, deceased, and another (Edward H. Pattison and Paul R. Jones, Troy, of counsel).

Harold E. Fritts, Hudson, for National Commercial Bank & Trust Co. of Albany, as executor of the last will and testament of Delbert Dinehart, deceased.

Samuel S. Ferris, Hudson, for Ray E. Delamater.

Morris, Dillon & MacHarg, Albany, for Martha Vosburgh (Donald MacHarg, Albany, of counsel).

Bell & Daley, Hillsdale, for Whilma Collins Grant (William B. Daley, Jr., Hillsdale, of counsel).

Burns F. Barford, Jr., Valatie, special guardian for Charles Ash and others.

Earl Schram, Jr., Hudson, special guardian for unknown distributees.

CHRISTIANA, Surrogate.

The will of Malvina Astor, consisting of sixteen typewritten pages, was probated in this Court on October 4, 1918. At the date of her death, decedent was survived by a sister, Charity Ann Snyder and three brothers, Franklin Dinehart, John C. Dinehart and Delbert Dinehart. Maria Ash, a sister, and two brothers, Alfred Dinehart and William Dinehart, predeceased testatrix. By the first sixteen articles of the will, decedent bequeathed legacies to various friends and relatives and created trusts for certain members of her family who were not to be included in her residuary estate.

The seventeenth article of the will, embodying the residuary clause, divided decedent's remaining estate into four equal parts. A separate rents and profits trust, as defined in subdivision 3 of Section 96 of the Real Property Law, was created in each of said parts. These trusts are referred to as the Charity Ann Snyder Trust, the Franklin Dinehart Trust, the William Dinehart Trust and the John C. Dinehart Trust.

These proceedings are brought to construe the language of the Franklin Dinehart Trust and a portion of the John C. Dinehart Trust and to settle the accounts of William B. Dinehart who had served as sole continuing trustee of the trusts in question until his recent death. The material portions of the residuary clause with which we are concerned read as follows:

Franklin Dinehart Trust

'Another of such equal fourth parts to William B. Dinehart, Adrian D. Langdon and George McClellan, in trust, for the said trustees to invest and keep invested, and receive the income arising therefrom, and after paying therefrom all charges and expenses incidental to such trust property and the execution of this trust, to pay over the residue of said income quarterly each year to my brother, Franklin Dinehart, for and during his natural life. Upon the death of the said Franklin Dinehart, should his children William B. and Ollie E. survive him, the said Trustees to pay over the residue of said income quarterly to said William B. and Ollie E. for and during their natural life, share and share alike. Upon the death of William B. Dinehart the said trustees are to pay over one-half of the principal of this trust to his issue if any survive him, in the same proportion they would be entitled had the said William B. died intestate possessed of the same. If no issue survive the said William B. Dinehart, said one-half of the principal of this trust to be paid to the issue of Ollie E. in the same proportion they would be entitled had the said Ollie E. Pulver died intestate, possessed of the same.

'Upon the death of Ollie E. Pulver, the said trustees to pay over one half of the principal of this trust to her issue, in the same proportion they would be entitled had the said Ollie E. died intestate, possessed of the same. In the event she leaves no issue then the said one half of the principal to be paid to the issue of William B. in the same proportion they would be entitled had the said William B. died intestate possessed of the same. * * *'

John C. Dinehart Trust

'The other of such equal fourth parts to William B. Dinehart, Adrian D. Langdon and George McClellan, in trust, for said trustees to invest and keep invested, and receive the income therefrom and after paying therefrom all charges and expenses incidental to such trust property and the execution of this trust, to pay over the residue of said income quarterly each year to my brother, John C. Dinehart, for and during the term of his natural life.

'Upon the death of the said John C. Dinehart, I direct my said trustees, pay over the residue of said income quarterly each year, as follows:

* * *

* * *

'One sixth part thereof to William B. Dinehart, for and during the term of his natural life. Upon his death to pay over one sixth of the principal of said trust, with any accumulations of interest, to his issue, if any survive, in the same proportion they would be entitled had the said William B. Dinehart died intestate, possessed of the same. If he leaves no issue then said one sixth of said principal to be paid to the issue of his sister, Ollie E. Pulver, in the same proportion they would be entitled had the said Ollie E. Pulver died intestate, possessed of the same.

'One-sixth part thereof to Ollie E. Pulver for and during her natural life. Upon her death to pay over one sixth of said principal of this trust to her issue surviving her, in the same proportion they would be entitled had the said Ollie E. Pulver died, intestate, possessed of the same. If she leaves no issue, said one sixth part of said principal to be paid to the issue of William B. Dinehart, in the same proportion they would be entitled had the said William B. died intestate, possessed of the same.'

Also of interest to the inquiry is article eighteenth of decedent's will which reads as follows:

'Eighteenth. One of the reasons of my making the various trusts in this my Last Will and Testament is to conform as near as possible with an understanding I had with my late husband, Henry Astor, from whom I have received my estate, and my desire is that the funds of my estate be retained in my family as long as possible.'

John C. Dinehart survived testatrix but died shortly thereafter. Franklin Dinehart survived testatrix and died on October 25, 1918. His daughter, Ollie E. Pulver, died on July 3, 1954. She had two children both of whom predeceased her and both of whom also predeceased William B. Dinehart. One child, J. Alan Pulver, was unmarried at the time of his death on April 2, 1933. The other child, Herbert D. Pulver, died testate on February 15, 1951, leaving him surviving his widow, Bernice W. Pulver, and no issue. William B. Dinehart died on July 15, 1955, without issue.

These proceedings stem from the fact that both Ollie E. Pulver and William B. Dinehart died without surviving issue thereby leaving the ultimate remainder of the Franklin Dinehart trust and the ultimate remainder of one-third of the John C. Dinehart trust undisposed of on the face of the will. Since the will contains no explicit disposition of the remainders, recourse must be had to interpretation and construction to ascertain, if possible, an intended class of beneficiaries. The quest is not a simple one and is seldom free from doubt. It has been well stated that 'the search for intention is often a search after a phantom.'

All agree that the testamentary intention must be ascertained within the perimeter of the will. This maxim has been so universally conceded as to require no extended citation of authorities. A refreshing reiteration of the rule is found in Matter of Fabbri's Will, 2 N.Y.2d 236, at page 239, 159 N.Y.S.2d 184, at page 187:

'The prime consideration here as in all construction proceedings is the intention of the testator as expressed in the will. All rules of interpretation are subordinated to the requirement that the actual purpose of the testator be sought and effectuated as far as is consonant with principles of law and public policy.'

Four possible theories of interpretation are proposed. These are considered with such brevity as is possible.

First theory of construction: The will should be interpreted to the effect that if a...