In re Cramer

• Citation: 63 N.E. 279,170 N.Y. 271
• Parties: In re CRAMER.
• Decision Date: 01 April 1902
• Court: New York Court of Appeals Court of Appeals

170 N.Y. 271

63 N.E. 279

In re CRAMER.

Court of Appeals of New York.

April 1, 1902.

Appeal from supreme court, appellate division, Fourth department.

In the matter of the accounting of Emma E. Cramer, guardian of Grace E. Cramer. From a judgment affirming a decree settling her accounts on objections filed by Myrtle Cramer (69 N. Y. Supp. 299), Emma E. Cramer appeals. Affirmed.

Charles McLouth, for appellant.

Charles T. Ennis, for respondent.

BARTLETT, J.

Emma E. Cramer, as the general guardian of her daughter, Grace E. Cramer, deceased, is the appellant in this proceeding to judicially settle her accounts. The amount involved in this accounting directly is the small sum of $144.80, but the necessary construction of the will presented for our consideration determines the disposition of valuable real estate. Gennet T. Gurnsey, a widow, aged 85 years, executed on the 25th day of September, 1897, her last will and testament. The first subdivision thereof reads as follows: ‘After the payment of all my just debts and funeral expenses, I give and bequeath to my two great-grandchildren, Gracie and Myrtie Cramer (daughters of Leonard Cramer, deceased), all my personal property, including my household furniture, equally, share and share alike. But in case of the death of either of said great-grandchildren, Gracie or Myrtie, without heir or heirs, I direct that such share of personal property shall go to the survivor of them.’ The second subdivision of the will is like the first in all respects, save that it deals with the real estate instead of personal property. The testatrix died early in 1899, and Grace departed this life on the 26th day of April, 1900. At this latter date Grace was 14 and Myrtle 12 years of age. The question decided by the surrogate was as to the disposition to be made of the money which came into the estate of Grace under the will of Gennet T. Gurnsey. It was claimed by her mother and guardian that it should be distributed equally between Myrtle and herself. The surrogate decided that Myrtle, as survivor, took the entire estate which passed to Grace under the will of Gennet T. Gurnsey. The appellate division, with a divided court, affirmed the decree of the surrogate. On application duly made the appellate division determined that there were questions of law in the case that ought to be reviewed by this court, and certified two questions, as follows: ‘(1) Is the sum of money in the said guardian's account which came to the hands of the guardian from and under the will of Gennet T. Gurnsey, deceased, distributable as in the decree of the surrogate's court provided, to wit, solely to Myrtle Cramer, or in equal shares to Emma E. Cramer, the mother, and Myrtle Cramer, the sister of said Grace E. Cramer? (2) Did the property of Gennet T. Gurnsey, under the said will, vest in Grace E. Cramer and Myrtle Cramer, at the death of said Gennet T. Gurnsey, so that upon the subsequent death of Grace E. Cramer such property would descend and be distributable as the property of Grace E. Cramer, intestate, and not as the property of or under the will of said Gennet T. Gurnsey, and without reference thereto?’

We agree with the prevailing opinion of the learned appellate division, and would consider it unnecessary to do more than adopt it, were it not for the fact that the questions certified render it necessary to make some general comments upon the case, in order to render our answers to the same intelligible. The appellant rests her claim upon two main propositions, viz.: (1) That, Grace having survived the testatrix, she became vested absolutely with one-half of the real estate and personal property devised and bequeathed to her by the will; (2) that, Grace having died at the age of 14 years, the said real estate and personal property passed to her mother and her sister Myrtle as her heirs at law and next of kin, under the statutes of descent and distribution. The learned counsel for the appellant states in his brief, in substance, that the will of Mrs. Gurnsey has nothing to do with the case, and need not be construed. On the contrary, whether this case is to be decided one way or the other, the conclusion can only be reached after a construction of the will. In order to sustain the claim that Grace, having survived the testatrix, became vested with her share of the property absolutely, which upon her death passed to her heirs at law and next of kin, it is necessary to establish that the testatrix referred in her will to the death of either great-grandchild in her lifetime. The language of the will, referring alike to real and personal property, is, ‘But in case of the death of either of said great-grandchildren, Gracie or Myrtie,...