Bishop v. Bishop

• Citation: 177 N.E. 302,257 N.Y. 40
• Parties: BISHOP v. BISHOP et al.
• Decision Date: 15 July 1931
• Court: New York Court of Appeals

257 N.Y. 40

177 N.E. 302

BISHOP

v.BISHOP et al.

Court of Appeals of New York.

July 15, 1931.

Proceeding to judicially settle his account by Cortlandt Field Bishop, individually and as sole surviving and sole acting executor of and trustee of the trusts under the last will and testament of David Wolfe Bishop, deceased, and as executor of the last will and testament and the codicils thereto of Florence V. C. Parsons, deceased, and as trustee of a trust under the said will and codicils therefor for the Catharine Mission, opposed by Beatrice Bend Bishop (now Beatrice Bend Berle), and others. Interlocutory judgment construing certain portions of the will of David Wolfe Bishop, deceased, and directing payment by plaintiff in accordance with such construction, was modified (230 App. Div. 439,245 N. Y. S. 213), and plaintiff appeals with an appeal by permission from a judgment of the same Appellate Division affirming a later judgment of the same referee in respect of expenses of the action.

Modified and affirmed.Appeal from Supreme Court, Appellate Division, First Department.

Nathan L. Miller, Charles A. Boston, and Harold H. Corbin, all of New York City, for appellant.

Winthrop H. Kellogg, of New York City, for respondent Beatrice B. bishop.

William G. Barr, of New York City, for respondent St. Luke's Hospital.

George W. Martin, Grenville T. Emmet and Richard S. Emmet, all of New York City, for respondent Bank of New York & Trust Co.

George N. Whittlesey, of New York City, for respondent Childrens' Aid Soc.

Francis Smyth, of New York City, for respondent New York Ass'n for Improving Condition of Poor.

John H. Johnson and Stephen G. Williams, both of New York City, for respondent New York Home for Incurables.

CARDOZO, C. J.

This action involves the construction of the ninth article of the will of David Wolfe Bishop, the elder, who died in 1900, a resident of Massachusetts, leaving a wife, Florence V. C. Bishop, afterwards Mrs. Parsons, and two sons, Cortlandt F. Bishop and David Wolfe Bishop, Jr.

By the article in controversy the residuary estate was divided into three shares upon trusts and limitations substantially as follows: One share to be held in trust for Mrs. Bishop during her life with power to appoint the remainder to her sons and their issue in such proportions as she chose, and in default of such appointment to the sons equally or their issue; a second to be held in trust for David during his life, remainder to his issue, and in default of issue to the brother Cortlandt if then surviving, and, if not, to the issue of such brother; and a third to be held in trust for Cortlandt during his life, remainder to his issue, and in default of issue to the brother David, if then surviving, and, if not, to the issue of such brother.

The limitations thus summarized would have been too clear, if they had stood alone, to raise a problem of construction. They were succeeded, however, by a proviso which limits their generality and obscures their meaning.

The proviso is the following:

‘Provided, however, as to all the foregoing provisions of this article of my will in favor of my sons, both direct and those to take effect upon the decease or remarriage of their mother, that they are upon the proviso and condition following, that is to say:

‘It is my wish that my estate shall go to my descendants, and if there shall not be issue of my sons to whom it can go, that in considerable part it shall go for charitable uses and purposes. This will, I know, be in accordance with the wishes of my dear wife. I feel confident that my sons will second my desire in this regard. I do therefore provide if and to the extent that the law will permit, in the event that both my sons shall die without surviving issue, that there shall be paid upon the death of the survivor, from my residuary real and personal estate, to my cousin, Mrs. Mary Augusta Alexander, of Augusta, Georgia, the sum of Five hundred thousand dollars ($500,000), the same in the case of her death to go to those persons who by the laws of the State of New York would take, and in the shares in which they would take, the same as personal property if she had died possessed thereof intestate; that in such case, that is to say, in and to meet the case that my two sons shall both die without surviving issue, each one shall have the right by Will to dispose, absolutely, of two hundred thousand dollars ($200,000) from my residuary estate; and that the residue shall go, and if and to the extent that the law will permit, I give, devise and bequeath the residue as follows: One-third thereof to St. Luke's Hospital in the City of New York; one-sixth thereof to the New York Home for Incurables; one-sixth thereof to the Children's Aid Society; one-sixth thereof to the New York Association for Improving the Condition of the Poor, and one-sixth thereof to the Catharine Mission, founded by my dear wife. If the said Catharine Mission shall not be or become incorporated so as to be able to take such one-sixth, or if either of the other institutions shall be unable to take the share left to it, I direct that the share or shares which shall thus fail shall go to and be divided among the other of the said institutions in the proportion of two parts thereof to St. Luke's Hospital and one part to each of the others. And in order that this provision, as far as possible, may have effect, I do further will and provide that during the lives of my sons respectively, all part of my residuary estate which under the foregoing provisions hereof would go to them, shall remain with the Trustees herein appointed, and their successors, upon the special trust and confidence, to have and to hold the same for and during the term of his natural life, to receive the income, rents, issues and profits thereof, and to apply the same to his use, maintenance and support. If it shall so happen that this provision of my Will can take effect in part, and only in part, and that by law a part of my residuary estate, if my sons shall both die without issue, must eventually go to the surviving son, then it is my will and I do provide that there shall not be given to him the power to appoint any portion of my residuary estate by will, but that the amount which will certainly come to him shall be treated as the equivalent of such power of appointment.

‘If in any respect any provision of my Will in whole or in part shall prove to be invalid, such invalidity shall only affect the part of such provision which shall be invalid. In all other respects my Will shall stand as if such invalid provision had not been made, and it shall fail to the extent, and only to the extent, that such provision shall be invalid.’

David Wolfe Bishop, Jr., died in 1911, without issue, leaving a will by which his entire estate, both real and personal, was given to his mother.

Florence V. C. Bishop, the mother (then Mrs. Parsons), died in 1922, leaving a will by which she appointed to her son Cortlandt the share of her husband's estate that had been held in trust during her life. She also made him her residuary legatee and devisee.

The sole issue of Cortlandt is a daughter, Beatrice Bend Bishop, now Beatrice Bend Berle.

The question of construction arises with reference to the respective interests of Cortlandt and his issue in the first and second shares.

As to the second of the three shares, we agree with the Appellate Division in its holding that the gift over to Cortlandt upon the death of David without issue was cut down and qualified by force of the proviso. The effect of that proviso is to substitute for the gift of the fee a trust estate for Cortlandt during his life, with remainder to his surviving issue, and in default of such issue to the charities, subject only to a gift of $500,000 to a cousin, or to the successors in interest of such cousin, and subject as to $200,000 to a power of appointment. The gift to the issue is not declared in so many words, but it results by necessary implication. Mee v. Gordon, 187 N. Y. 400, 80 N. E. 353,116 Am. St. Rep. 613,10 Ann....