In re Durand's Will

• Decision Date: 31 December 1928
• Citation: 164 N.E. 737,250 N.Y. 45
• Parties: In re DURAND'S WILL.
• Court: New York Court of Appeals Court of Appeals

250 N.Y. 45

164 N.E. 737

In re DURAND'S WILL.

Court of Appeals of New York.

Dec. 31, 1928.

Application by Lillie M. Durand and another, as executors of the last will and testament of John E. Durand, deceased, and another, for the construction of said Will. Decree of the Surrogate construing the will was unanimously affirmed by the Appellate Division (224 App. Div. 775, 230 N. Y. S. 829), and the executors appeal by permission.

Reversed, and proceeding remitted.

Lehman, J., dissenting.Appeal from Supreme Court, Appellate Division, Fourth Department.

Clarence P. Moser and Raymond Bentley, both of Rochester, for appellants.

William F. Strang, of Rochester, special guardian, for respondents Virginia Ranlet Durand and John Ewing Durand.

George A. Carnahan, of Rochester, special guardian of undetermined infants, respondents.

CRANE, J.

John E. Durand, a resident of the city of Rochester, N. Y., died at Rochester on the 15th day of May, 1926, survived by his widow, Lillie M. Durand, 63 years of age, and by his only child, Samuel E. Durand, who was then 30 years of age. Samuel Durand was married, and his wife is still living. They have two children, both of whom were living at the time of the testator's death: Virginia Ranlet Durand, Jr., who was then 5 years of age, and John Ewing Durand, who was then 3 years of age. No other children have since been born. The deceased left no descendants of any deceased child.

Mr. Durand's estate consisted entirely of personal property, the gross value of which, as fixed in the transfer tax proceeding, being about $1,150,000, subject to debts and funeral expenses of about $20,000. He left a will and codicil, dated respectively May 2, 1923, and December 24, 1925, which have been probated. They provide for various legacies and trust funds, totaling $50,000 for certain charities and for the testator's niece and daughter-in-law; two trusts of $10,000 each for the education of the two living children of Samuel E. Durand, above mentioned; a trust of $100,000 for Samuel E. Durand during his life, with remainder to the granddaughter, Virginia Ranlet Durand, Jr., and a similar trust of $100,000 for his son, with the remainder to John E. Durand, the grandson. The residue of the estate was disposed of in the eleventh and twelfth clauses of the will, which are here quoted in full, as they have given rise to this litigation:

‘Eleventh. All the rest, residue and remainder of my property, both real and personal, I give, devise and bequeath to be disposed of by my executors as follows:

‘If my wife, Lillie M. Durand, survive me, said residuary estate is to be held by my executor, Samuel Ewing Durand, as trustee, or by his successor if for any reason he does not qualify, to keep said fund invested and pay the net income therefrom to my wife, Lillie M. Durand, semiannually, during the remainder of her life; and upon her death my said trustee shall pay over the corpus of said residuary estate to my son, Samuel Ewing Durand, if he be then living, and close the trust.

‘If my wife do not survive me, but my son, Samuel Ewing Durand, do survive me, then upon my decease my executors shall pay said residuary estate to my said son as residuary legatee under this will.

‘Twelfth. If my wife, Lillie M. Durand, survive me, but my son, Samuel Ewing Durand, be not living at her decease, then upon her decease, or if neither my wife nor son survive me, then upon my decease, I direct that said residuary estate, together with any accumulations belonging thereto and undistributed, be paid over to the Rochester Trust & Safe Deposit Company as trustee, or retained by said Trust Company if it shall then be acting as trustee of said fund, and said trustee shall thereupon divide said fund into as many equal parts as my son shall have children living at the time of such division, except that if any of his children shall have thertofore died, leaving issue then living, the share their parent would have taken if then living shall be set apart, held during minority, and paid to such issue upon arrival at twenty-one years of age. Said trustee to hold one of such equal parts for the benefit of each of the children of my son then living, pay the net income therefrom to the mother of such child during his or her minority, and thereafter pay the income to such child until he or she arrives at thirty years of age, at which time the principal shall be paid over to the beneficiary, and that particular trust closed.

‘In the event of the death of any such child living at the time of such division and before arriving at thirty years of age, then upon such death the principal of the fund for the benefit of the one so dying, together with all accumulations belonging thereto and undistributed, shall be distributed to the husband, wife, heirs-at-law and next of kin of the one so dying, as though he or she had died the intestate owner thereof.’

The codicil modifies the twelfth paragraph in the following words:

‘Third. I modify, and add to, the ‘twelfth’ paragraph of my said will of May 2, 1923, as follows:

‘Whenever, as provided in the said ‘twelfth’ paragraph of my will, any grandchild or greatgrandchild of mine becomes the owner of a fund, subject only to the necessity of arriving at twenty-one years or thirty years of age as the case may be, before becoming entitled to full ownership in possession and to have the trust as to that particular fund terminated, I give to each such grandchild or greatgrandchild the right to dispose of the principal of such fund by his or her will made after arrival at legal age to make a will of personal property, and I further direct payment and distribution to such appointee, if any; and in default of such appointment by will, I direct that the principal be disposed of as directed by said ‘twelfth’ paragraph of my will.'

In this proceeding the executors have asked for a construction of this will, relating to the disposition of the remainder of the estate under the eleventh and twelfth clauses, as modified by the codicil. All parties are agreed that there is here a suspension of absolute ownership for a longer time than is permitted by the Personal Property Law (Cons. Laws, c. 41) § 11. In case Samuel Ewing Durand, the son, died during the lifetime of his mother, the testator directs that the residuary estate be paid to the trust company, as trustee, which shall thereupon divide the fund into as many equal parts as the son shall have children living at the time of such division. The trustee is to hold each of the parts and pay the net income therefrom to the mother during the minority of each child, and thereafter pay the income to each child until he or she arrives at 30 years of age, at which time the principal shall be paid over to the beneficiary and the trusts closed in the order of the happening of such events.

That the son, Samuel Ewing Durand, may have other children than the two now living, before the termination of the life estate, renders this proposed disposition illegal, as it ties up the estate and prevents its vesting for longer than two lives in being. The power of alienation would be suspended during the lifetime of unborn child or children, or until they should arrive at 30 years of age.

The scheme of the maker of this will was first to provide for his wife, and then for his son. This he did by giving the income of the remainder of the estate, after certain bequests, to his wife for life; upon her death the principal to go to the son. The father expected the son in this case to look after his children, no matter how many there might be; in case of the son's survivorship, the maker of the will had no anxiety about the welfare of his grandchildren. If, however, the son should not survive his mother, the life beneficiary, the grandfather desired to provide for the grandchildren. This to him apparently was an uncertain problem; two were still very young, too young to give any forecast as to their nature, character, or wisdom. The...