Atkinson's Will, In re
| Decision Date | 30 October 1956 |
| Citation | 4 Misc.2d 992,156 N.Y.S.2d 589 |
| Parties | In re ATKINSON'S WILL. Petition of Alfred M. SCHAFFER and Guaranty Trust Company of New York to obtain an order Construing the Last Will and Testament of James K. Atkinson, also known as James A. Kealhofer, Deceased. Surrogate's Court, Suffolk County |
| Court | New York Surrogate Court |
Uterhart & Schaffer, New York City, for petitioner.
Eugene A. Sherpick, New York City, special guardian.
William Dranitzke, Patchogue, special guardian for unborn children.
Curtis, Mallet, Prevost, Colt & Mosle, New York City, for Eugenia Maslen Dickinson.
Abraham Reiss, New York City, for Nina A. Burniston, legatee.
Dominic J. Baranello, Medford, for Medford Volunteer Fire Co., Inc.
David Rayvid, New York City, for J. Philip Schmidt.
HAZLETON, Surrogate.
The questions propounded by the executors and trustees under the last will and testament of James K. Atkinson, also known as James A. Kealhofer, deceased, in this construction proceeding are answered as follows:
Question 1(a) and 1(b). The devises of Suffolk County real property to Grace V. Schmidt are limited to the parcels specifically described in the recorded deeds mentioned by the testator in paragraphs 'Fourth' and 'Fifth' of the will. In identifying and referring to these deeds as the particular property he wished to devise, testator's intent is clear. His mistaken estimate of the approximate quantity of land covered by the deeds does not enlarge or diminish the grant. Sweet v. Marsh, 133 App.Div. 315, 117 N.Y.S. 930. It therefore follows that any remaining Suffolk County realty not so specifically devised to Grace V. Schmidt or the Medford Fire Department falls into the residuary estate. Riker v. Cornwell, 113 N.Y. 115, 20 N.E. 602.
Question 2. The executors and trustees do not have power of sale over Suffolk County real property included in the residuary estate without first obtaining the Surrogate's approval. In paragraph 'Twelfth', testator expressly gave to his executors and trustees the power to sell all real estate 'excepting as to real estate in Suffolk County, New York.' The explicit prohibition contained in this paragraph, dealing exclusively with the executors' and trustees' power of sale over realty, defines more particularly and must be engrafted upon an earlier provision in the will granting a power of sale in general terms. To hold otherwise would alter the simple meaning of the words of exception and deal in conjecture.
Questions 3, 4 and 5. The remainder interests under all the residuary trusts established under paragraph 'Eleventh' are contingent. The class of persons entitled to share such remainder interests will be determined upon the death of each life beneficiary and will include the following persons who survive the respective life beneficiaries:
a.) The children of Emily W. Maslen and Nina A. Burniston.
b.) The issue per stirpes of any such child who predeceases the life beneficiary.
c.) The issue per stirpes of any such child named as life beneficiary.
Paragraph 'Eleventh' establishes nine distinct residuary trust funds each having a separate named life beneficiary whose life measures the duration of the trust. The testator, with identical language, save for meaningless changes in phraseology, directed the trustees to distribute each trust corpus in the following manner:
'* * * and upon (the named life beneficiary's) death, to pay, assign, transfer or convey said Share (describing it) to the children of my cousins, Emily W. Maslen and Nina A. Burniston, in equal shares, the issue of any deceased children to take the same share to which the parent would have been entitled, per stirpes and not per capita.'
'In case, at the termination of any of the life estates set up by this Paragraph, there should be no children of my cousins Nina A. Burniston or Emily W. Maslen, or issue of said deceased children surviving I hereby direct that the corpus of said life estate be considered personal property and be distributed in accordance with the laws of the State of New York in force at the time of the termination of said life estate, except for the exclusion of Miriam A. Myer or her heirs from any further participation in my estate.'
Here we have a clear statement by the testator that if 'at the termination of the life estates' there be no remaindermen of the class described alive, the corpus should pass 'in accordance with the laws of the State of New York in force at the time of the termination of said life estates.' It is therefore evident that the testator did not intend the trust res to become vested property of the remaindermen who qualified as such on his death, passing as part of the remaindermen's estates to persons possibly unrelated to testator should any or all of them predecease the life beneficiary. To the contrary, the testator provided that if at the termination of the life estates there should be none of the class of remaindermen surviving, the corpus should pass as part of the testator's estate in accordance with his directions. The intent to postpone vesting is clear. Paget v. Melcher, 156 N.Y. 399, 51 N.E. 24; Matter of Buechner, 226 N.Y. 440, 123 N.E. 741.
If resort to rules of construction were necessary the result would...
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