Fulton Trust Co. of New York v. Phillips

• Decision Date: 11 July 1916
• Citation: 113 N.E. 558,218 N.Y. 573
• Parties: FULTON TRUST CO. OF NEW YORK v. PHILLIPS et al.
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 573

113 N.E. 558

FULTON TRUST CO. OF NEW YORK

v.PHILLIPS et al.

Court of Appeals of New York.

July 11, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Fulton Trust Company of New York, as substituted trustee under will of Jane V. C. Cooper, deceased, against Bradley H. Phillips and others, as executors of the will of Elizabeth M. Newton, deceased.

From a judgment of the Appellate Division (164 App. Div. 498,150 N. Y. Supp. 335), affirming a judgment of the Special Term, defendants Samuel V. Hoffman, as executor, and others appeal.

Affirmed.

Arthur Sutherland, Winthrop & Stinson, and Man & Man, all of New York City, for defendant appellants.

Kneeland, Harison & Hewitt, of New York City, for plaintiff respondent.

Greene, Hurd & Stowell, of New York City, for defendant respondents.

Falk, Phillips & Schlenker, of Buffalo, for defendant Cross.

SEABURY, J.

This action is brought by the plaintiff, as substituted trustee under the will of Jane V. C. Cooper, deceased, for a judicial settlement of its accounts as trustee of a trust created by the residuary clause of the will for the benefit of Elizabeth Newton and for a construction of the will directing a distribution of the trust estate.

Jane V. C. Cooper, the testatrix, died April 4, 1890. She left her surviving no husband, descendant, or father or mother, but as her heirs at law and next of kin her three sisters, Cornelia Beekman De Peyster, Elizabeth De Peyster, and Catherine Augusta De Peyster, and her niece, Mary B. Bailey, all of whom have since died. The appellants are the personal representatives of the deceased next of kin. Elizabeth Newton, for whose benefit in part the residuary estate was directed to be devoted, was the first cousin of the deceased. At the time of the execution of the will, on May 28, 1889, Elizabeth Newton was 49 years of age, and had been a widow since 1872. She had two sons, Albert L. Newton, then about 30 years old, and Henry J. Newton, then about 20 years old. Elizabeth Newton never remarried, and died on May 16, 1913. Prior to that date her two sons, Albert L. Newton and Henry J. Newton, had each died without issue, but both at the time of their death were over 21 years of age. The respondents are the personal representatives of the said Elizabeth Newton, Albert L. Newton, and Henry J. Newton.

The residuary clause of the will of the testatrix which it is necessary to construe in this action is as follows:

‘Thirteenth. All the rest, residue and remainder of my estate, I give, devise and bequeath to my executor hereinafter named in trust to collect and receive the rents, issues and profits thereof and to covert the realty into money at public or private sale and at such time or times and upon such terms as in his judgment may appear for the best interests of my estate, to divide the net proceeds thereof, together with the personalty of my residuary estate into two equal shares and to set apart one of such shares for the benefit of Elizabeth Newton, of Fredonia, in the state of New York, and the other of such shares for the benefit of Dorus Bailey, Florence Bailey and Mary De Peyster Bailey, three of the children of my niece, Mary B. Bailey, and to invest said shares upon Bond and Mortgage of otherwise unincumbered real estate, or upon other lawful securities, with liberty to change the investment or investments at his discretion for any other of the kind above described and to collect and receive the income thereof and to dispose of the same and of the principal of such shares as follows, to wit: First. To pay over to said Elizabeth Newton the net annual income of the share so set apart for her benefit, for and during the term of her natural life and from and after her decease to her children in equal shares until they shall respectively attain the age of twenty-one years, and as each of such children shall reach that age to pay over to him or her an equal proportionate part of the principal of such share and of the net accrued income thereof. Second. To pay the net annual income of the share so set apart for the children of Mary B. Bailey to or for the benefit of said children respectively in equal shares until the youngest of said three children shall reach the age of twenty-one years or die, whichever event shall first take place, and thereupon to distribute such share with all accrued income thereof to and among said three children the survivor or the survivorsof them equally, share and share alike, the issue of a deceased child to take the share to which its parent would have been entitled if living.’

[1][2][3] The trust referred to in this clause for the benefit of the children of Mary B. Bailey has been administered and accounted for, and is not in dispute in this action. The learned courts below have held that the two sons of Elizabeth Newton took vested remainders in the trust estate for the benefit of Elizabeth Newton, and awarded this estate to the personal representatives of the sons of Elizabeth Newton. The correctness of that determination is challenged upon this appeal. In the interpretation of this will the consideration of paramount importance is to discern the intention of the testatrix as expressed in the will. All other rules for the interpretation of wills are subordinate to the requirement that the intention of the testatrix should be sought and given effect when that may lawfully be done. The general scheme of the will as well as the specific clause which attempts to dispose of the residuary estate is indicative of the intention of the testatrix that the disposition of the residuary estate should be a complete and final disposition. The circumstances disclosed in the will vindicate the presumption that the testatrix did not intend to die intestate as to any portion of her estate. Yet if the gift contained in the residuary clause was contingent, as claimed by the appellants, the testatrix must be held to have died intestate as to this portion of her residuary estate. If the gift had been out of the general estate, the reason for believing that the testatrix intended it should be vested rather than contingent would not be as plain and cogent as where the gift is of the residuary estate itself. Roosa v. Harrington, 171 N. Y. 341, 64 N. E. 1;Hersee v. Simpson, 154 N. Y. 496, 502,48 N. E. 890.

The residuary clause contains a clear direction severing and setting apart a particular portion of the estate to be applied to the...