In re Rooker's Will

• Decision Date: 29 May 1928
• Citation: 162 N.E. 283,248 N.Y. 361
• Parties: In re ROOKER'S WILL. In re ZWILLING et al.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 361

162 N.E. 283

In re ROOKER'S WILL.

In re ZWILLING et al.

Court of Appeals of New York.

May 29, 1928.

Petition by William P. Zwilling and another for the judicial construction of the last will and testament of Margaret K. Rooker, deceased. From an order of the Appellate Division (222 App. Div. 717, 225 N. Y. S. 927) affirming a decree of the surrogate contruing the will, an appeal is taken.

Reversed and rendered.

Appeal from Supreme Court, Appellate Division, Fourth department.

Mortimer L. Sullivan, of Elmira, for appellants.

William G. Staudenmaier and Francis S. Macomber, both of Rochester, for respondents.

ANDREWS, J.

We are called upon to determine the intent of a testatrix, as shown by the confused provisions of a will. Margaret Rooker bequeathed the residue of her estate to a trustee. It is told to pay from the income $200 per annum to a sister, and any balance remaining to two nephews or to the survivor of them. Upon the death of the sister the trust is to end, and the principal is to be divided. Precisely how this is to be done is stated. If the nephews survive, each is to receive such sum as, together with the income already paid him, shall amount to $3,000. If one be dead, then his legacy shall go to his issue, if any, or, if none, to the surviving nephew. Only, in the case of death, the legacy both to the survivor and to the representatives of the deceased is to be calculated by subtracting from $6,000 the amount of all income paid to both nephews. What is then bequeathed to each legatee is one-half of the sum so found.

So far the result is clear. During the sister's life, her sons, the nephews of the testatrix, are to receive all income not payable to her. At her death, they are to receive much or little or nothing, dependent upon the amount of the benefits which have already come to them from the estate. The result might be unfair. If one nephew dies immediately after the testatrix, if the sister survives until the surviving nephew has received $6,000 of income, then the issue of the former would receive nothing. Still that is the will of Mrs. Rooker.

Now, however, comes the phrase that has caused doubt. We have been dealing with the distribution of the principal after the sister's death. We are told what is to be done if both nephews survive; what, if one dies? Then the will continues: ‘It being my intention that my said nephews and their issue shall receive of both principal and income, the aggregate sum of $6,000.’ Does this mean that they are to receive the sum of $6,000 and no more? That, once each has been paid out of income $3,000, their interest in the estate ends, thus cutting down the previous bequest to them of all surplus income, or has Mrs. Rooker still in mind the final distribution of the principal, and is she restating her desire that, when the time for such distribution comes, her nephews are to have but $6,000, less what income they have already received?

The matter has become important. Mrs. Rooker died in 1920. Her sister and her nephews are still living. After paying the sister her $200 per annum, the trustee now has in its hands over $8,000 of income. Shall the excess over $6,000 and any future excess be paid to the nephews, or as it may not be accumulated, shall it be paid to two charitable corporations who are the residuary legatees?

The truth is that in all probability the testatrix never thought of such a possibility. How large the estate was does not appear. But...