Bowron v. Kent

• Decision Date: 07 January 1908
• Citation: 190 N.Y. 422,83 N.E. 472
• Parties: BOWRON et al. v. KENT et al.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 422

83 N.E. 472

BOWRON et al.

v.KENT et al.

Court of Appeals of New York.

Jan. 7, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Clara A. Bowron and others, individually and as executors and trustee under the will of Ellen Josephine Banker, deceased, against Sara H. Kent, individually and as executrix and trustee under the same will, impleaded with others. From an order of the Appellate Division (120 App. Div. 74,105 N. Y. Supp. 138), modifying and, as modified, affirming a judgment of the Special term (51 Misc. Rep. 136,100 N. Y. Supp. 768) in favor of defendant, plaintiffs appeal. Judgment of Appellate Division reversed, and that of the Special Term affirmed.

Joseph F. Daly, for appellants.

Francis N. Kohlman, James C. Kellogg, Augustus N. Hand, and John Mason Knox, for respondents.

J. Noble Hayes, guardian ad litem.

HAIGHT, J.

This action was brought to obtain a construction of the last will and testament of Ellen Josephine Banker, deceased, and for a settlement of the accounts of the executors and trustees thereunder. The only question in controversy arises over a contract executed by the appellant Sara H. Kent, made with the testatrix in her lifetime, under which she has received the sum of $25,000, less $440 commission, which, it is claimed by the respondents, should be deducted from the amount which she is now entitled to receive under the ninth clause of the decedent's will.

The facts as found by the trial court, in so far as they bear upon the question under review are substantially as follows: Ellen Josephine Banker, decedent, was a resident of Irvington, in the county of Westchester, this state, and there died on the 20th day of February, 1903, leaving a last will and testament, bearing date the 6th day of August, 1898, which was duly admitted to probate, in which she appointed the plaintiffs and the defendant Sara H. Kent her executors and trustees. By the fifth clause of the will she provided that: ‘That trustees are to divide one equal one-fifth part of the said residuary estate into as many shares as may be necessary and to allot one of such shares for each of Philip Guilmartin, Sara Kent and Ellen Josephine Holgate, children of my sister, Clara Holgate. And the trustees are to receive and collect the rents, income and profits of each of the said shares of subdivisions and apply the net income realized therefrom to the use of the person for whom the same is so allotted during his or her natural life. And upon the decease of each of them the share or subdivision so allotted for him or her is by the trustees to be paid over and transferred absolutely and in fee to his or her then living children and lawful issue (taking per stirpes) of a child of him or her theretofore deceased. And in case at the decease of either of them the said Philip, Sara and Ellen, there shall be living no lawful issue of him or her, then and in such case the share so allotted for the one so dying is by the trustees to be paid over and transferred absolutely and in fee to the then living lawful issue (taking per stirpes) of the other above-named children of my sister Clara Holgate.’ And by the ninth clause she further provided that: ‘The remaining one equal one-fifth part of the said residuary estate is by the trustees or executors upon by decease to be paid over and transferred absolutely and in fee to the same person or persons and in the same shares and proportions as by the law of the state of New York would inherit real estate from me in case I died intestate. And whatever share, subdivision or part of my residuary estate, if any, shall fail to be effectually disposed of under the preceding fifth, sixth, seventh and eighth articles of my will or either of them is to be added to the one-fifth part providedfor by this ninth article of my will and is to be disposed of accordingly. But in case either of the life beneficiaries mentioned in such fifth, sixth, seventh and eighth articles of my will shall die before me leaving lawful issue who survive me, such issue shall take upon my decease whatever would have gone to them in case the death of their parent had occurred immediately upon my own decease. And if either of these life beneficiaries dying before me shall leave no lawful issue who survive me, then and in such case the share or subdivision intended to be alloted for the one of dying shall be added to the other shares under the article of my will containing the provisions for such life beneficiary.’ It is further found as a fact that at the time of executing the will by Mrs. Banker there was living Clara Holgate, her sister, who was the mother of Sara H. Kent, who, as such sister, was presumptive heir at law of the testatrix, and therefore one of the persons to whom presumptively the residuary estate would go, under the ninth clause of the will, to the exclusion of any right of Mrs. Kent or her brother and sister; that by her death on the 8th day of August, 1899, Mrs. Kent became presumptively entitled to a share in the estate under the ninth clause of the will; that after the death of Clara Holgate, the mother of Mrs. Kent, the testatrix made no changes in her will effectuating an intention to lessen the amount that would go to Mrs. Kent under the will by reason of the death of her mother; that from the time that Mrs. Banker executed her will down to her decease Mrs. Kent was the only one of her nephews or nieces who had children; that in no part of the will did the testatrix express or imply and intention that the $25,000 provided for in the agreement of June 15, 1885, should be withheld from any share allotted to or provision made for her. The other relatives of Mrs. Banker consisted of nephews and nieces, children of a deceased sister, and of two deceased brothers. By the other provisions of the will, after giving a legacy to the trustees of Columbia College and to the Society of the New York Hospital for the benefit of the Bloomingdale Insane Asylum, and a bequest of $5,000 to a nephew, Benjamin Britton Gottsberger, the testatrix set apart an equal one-fifth part of her estate for each of the families of her deceased sister and brothers.

It is further found as facts that the defendant Sara H. Kent, née Holgate, was at the age of 12 years taken by the testatrix and her husband, James H. Banker, to live with them, and that she was thereafter supported, clothed, and educated by them until her marriage in 1881 to Rockwell Kent, by whom she had three children; that in September, 1887, Rockwell Kent died, leaving Mrs. Kent a widow, who has since supported her three children; that James H. Banker, the husband of the testatrix, died on the 10th day of February, 1885, leaving a last will and testament dated the 22d day of January, 1884, which was subsequently offered for probate in the Surrogate's Court of Westchester county, and thereupon Mrs. Kent was given leave to appear and oppose the probate upon the ground that Banker had executed another will in the presence of Mrs. Banker and Mrs. Kent, under which he had divided his estate equally between them. After Mrs. Kent had been permitted to intervene and oppose the probate, an agreement of settlement was made between Mrs. Banker and Mrs. Kent, under date of July 15, 1885, in which Mrs. Banker agreed with Mrs. Kent to place the sum of $25,000 in the hands of a trustee, which sum at the death of Mrs. Banker should be paid over to Mrs. Kent, if living, or, if deceased, to her issue per stirpes who shall then be living, subject, however, to a general and beneficial power of testamentary appointment by Mrs. Kent. The agreement further provided that: ‘In case upon the decease of Mrs. Banker any share of her estate shall pass to Mrs. Kent or her issue, the value or benefit of the said trust to Mrs. Kent and her issue shall be treated as an advance upon account of such share and reckoned accordingly.’ It further is found that Mrs. Banker executed a mortgage upon real estate to the Farmers' Loan & Trust Company of New York, to secure the payment of the $25,000 so provided for by the agreement, and that upon the death of Mrs. Banker that sum was paid over to Mrs. Kent, less the commissions of the trustees-$440.

The trial court has found that the testatrix did not intend that the sum so paid to Mrs. Kent should be deducted from the provisions made for her in the will, and awarded judgment accordingly. The Appellate Division has modified the judgment by directing that the amount be deducted from that which would come to her under the ninth clause of the will. The modification is, in effect, a reversal as to this item. It does not appear that the Appellate Division has reversed upon the facts. The question is thus presented as to whether the item in question should be charged against the bequest to Mrs. Kent.

The testatrix by her will has attempted to dispose of all of her estate. Ordinarily a person in executing a will is presumed to make final disposition of the estate of which he may die seised or...