Howland v. Clendenin

• Decision Date: 01 October 1892
• Citation: 31 N.E. 977,134 N.Y. 305
• Parties: HOWLAND v. CLENDENIN et al.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 305

31 N.E. 977

HOWLAND

v.CLENDENIN et al.

Court of Appeals of New York, Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, first department.

Action by Meredith Howland, individually, and as trustee under the will of Gardiner G. Howland, against Louisa H. Clendenin, Joanna H. Grinnell, and others, to obtain, inter alia, a construction of the will. From a judgment of the general term, (9 N. Y. Supp. 233,) modifying, and as modified affirming, a judgment entered on a decision of the special term, defendants Louisa H. Clendenin and Joanna H. Grinnell appeal. Affirmed.

Daniel G. Rollins, for appellants.

Robert W. De Forest and Eugene D. Hawkins, for respondent.

FOLLETT, C. J.

Gardiner C. Howland died November 9, 1851, leaving a widow, five sons, four daughters, and four grandchildren, the children of his deceased daughter, Abby Woolsey Wolcott. He left a last will and testament which contains this clause: ‘ Twenty-First. All and singular the rest, residue, and remainder of my estate and property, both real and personal, whatsoever and wheresoever, I do hereby devise and bequeath unto my eight beloved children, that is to say: William Edgar Howland, Annabella Howland, Abby Woolsey Howland, Robert Shaw Howland, Maria Louisa Howland, Rebecca Brien Howland, Meredith Howland, and Gardiner Green Howland, Junior, and such other child or children as may hereafter be born to me, or wherewith my wife may be enceinte at the time of my death, and to their respective heirs, executors, administrators, and assigns, forever, to be divided equally between them or share and share alike, including the issue of such as may die before me, such issue taking the same share as their, his, or her parent or other ancestor would have taken if living, subject, however, in regard to the portions of my sons, to the limitation herein next stated, and also subject, in regard to the portions of my daughters, to the trusts hereinafter declared in regard thereto, that is to say, with regard to the portions of my sons, my will and direction are that my said sons be put into the possession and enjoyment of the one equal half part of their respective portions as soon as they shall severally attain the age of twenty-one years, and the other half as they severally reach the age of twenty-five years, which latter half my executors are hereby directed to retain in their possession and control until such latter age, but, in the mean time, to pay to my said sons, respectively, the interest, dividends, or other periodical income thereof. And with regard to the portions of my daughters, my will and direction are that my said executors and the survivors and survivor of them be, and I hereby constitute them and him, the trustees and trustee of the portions of my said daughters, respectively, during their respective natural lives; and I hereby give and bequeath the same to my said executors and the survivors and survivor of them accordingly in trust for my said daughters, respectively, and to invest the same in their or his names or name as such trustees or trustee in the manner hereinafter directed, and to pay over the interest, dividends, or other periodical income thereof to my said daughters respectively, from time to time, to and for their own separate use and benefit, and upon their separate receipt, whether married or sole, during the residue of their natural lives, and upon their death, as each shall happen to die, to pay over and distribute the principal of the share or portion of the one so dying to her issue living at the time of her decease, including the issue of such as may then be deceased, equally, or share and share alike, the issue of any deceased child then living taking the same share as their, his, or her parent or other ancestor would have taken if then living.’ The record does not disclose whether the residue was realty or personalty, or both. This will was duly probated and the estate settled, and the residue divided pursuant to this clause into ten equal shares, one of which was set apart for Louisa H. Clendenin, and another for Joauna H. Grinnell, both daughters of the testator, neither of whom has borne children, and both of whom have passed the child bearing age. A dispute arose between said two daughters, on the one side, and their surviving brothers and sisters and the descendants of the brothers and sisters who have died, on the other side, as to the disposition which is to be made of the shares so set apart for said two daughters after their deaths without leaving children. Louisa H. Clendenin and Joanna H. Grinnell assert that, in the event that they die without leaving children, the portions set apart for them will form part of their respective estates, and that their personal representatives will be entitled to receive the same from the then trustees of said trust; and that they, the sisters, are entitled to dispose of their portions by will; and that in case they die intestate their administrators will be entitled to receive said capital from said trustees, and dispose of it in accordance with the statutes of this state for the disposition of estates of persons dying intestate. On the contrary, the respondents claim that in said event the capital must be distributed among the surviving children of the testator and the representatives of such as may then be deceased, as if the same were property as to which the testator had died intestate, or that the capital must be divided among the issue of the testator who may then be surviving, per stirpes. The learned counsel for the appellants states in his brief that the will under consideration was executed December 29, 1839, some years before the passage of those statutes known as the ‘Married Woman's Acts,’ but an examination of the appeal book fails to disclose the date of the execution of this will, or any relevant fact outside of it which throws any light upon the intent of the testator, whose purposes must be ascertained by the court from the language of the clause above quoted. While engaged in interprting this clause, it must constantly be borne in mind that it is a residuary clause by which the testator probably intended to dispose of all of his estate not devised and bequeathed by the earlier provisions of the will, and that in construing wills, and especially residuary clauses, the courts lean towards an interpretation which will prevent partial intestacy. The testator provided for all of his sons in one manner, and for all his daughters in another. All of the children took their shares in severalty, the sons' title vesting upon the death of the testator, but their possession and control was postponed until they reached the prescribed ages.

The learned counsel for the appellants states in his brief: ‘No one denies, or ever has denied, that the legal title is vested in the trustees. Mrs. Clendenin and Mrs. Grinnell, instead of owning equitable life estates, are, by the operation of our statutes, owners of a right to enforce the execution of the trust.’ To this we agree. He says that it does not follow from this that the daughters have no interest in the ultimate disposition of their shares. That is...