In re Silsby

• Decision Date: 07 July 1920
• Parties: In re SILSBY et al.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 396

128 N.E. 212

In re SILSBY et al.

Court of Appeals of New York.

July 7, 1920.

In the matter of the second intermediate accounting and judicial settlement of the account of William S. Silsby and Ajah R. Palmer, as trustees under the will of Horace Silsby, deceased, and for the construction of the will of said deceased. A decree of the surrogate's court was affirmed by the Appellate Division (179 N. Y. Supp. 951), and Horace N. Silsby appeals from the order.

Order and decree reversed, with directions.Appeal from Supreme Court, Appellate Division, Fourth Department.

William Murray, of New York City, for appellant.

Herman A. Carmer, of Seneca Falls, for trustees, respondents.

C. Willard Rice, of Geneva, for respondent Kenneth Silsby.

Charles F. Hammond, of Seneca Falls, special guardian for Eleanore M. Hart and another and counsel for Charles H. Hart and another, respondents.

CHASE, J.

Horace Silsby died February 5, 1901, leaving a last will and testament which was duly probated and by which he directed the payment of his debts, funeral expenses, and the expenses of administering his estate. All of the remaining property of every name and kind he gave to his executors and trustees therein named, in trust, however, to invest and keep invested, and--

‘to dispose of the same, principal and interest as follows to wit:

‘To pay over to my wife, Rebecca Silsby, from time to time for and during the term of her natural life, the net income, interest, issues and profits of and from the said entire trust estate.

‘At and after the death of my said wife, and said trust estate so held by my executors and trustees shall be by them divided, so nearly as may be, into three equal parts or shares, one of which shares shall be held by my said executors and trustees and the net interest and income therefrom shall be by them paid over from time to time, to my daughter Eleanor P. Hart, of Rochester, N. Y., for and during the term of her natural life, and upon her death shall be turned over and shall belong to the then living heirs of my said daughter; another of said shares shall be held by my said executors and trustees, and the net interest and income therefrom shall be by them paid over, from time to time, to my son Horace N. Silsby for and during the term of his natural life, and upon his death said share shall be turned over and shall belong to the then living heirs of my said son. The other of the shares shall be held by my said executors and trustees and the net interest and income therefrom shall be by them paid over, from time to time, to my daughter Emma Feek, for and during the term of her natural life and upon her death said share shall be turned over and shall belong to the then living heirs of my said daughter; provided always that should any of my said children die without leaving descendants then the share to which such descendants would have been entitled shall be, by my said trustees, held for the benefit of my remaining children for life, as hereinbefore set forth, and upon their death to go to their descendants as above provided.’

He left him surviving his widow and three children, Eleanore P. Hart, Horace N. Silsby, and Emma S. Feek. The executors as trustees held the residuary estate as directed by the will until the death of the widow which occurred October 29, 1916. The trust fund was then divided into three parts and thereafter held for the three children severally as provided by the will. The daughter Eleanore is living and has four children, three of whom were born prior to the death of the testator, and one in 1904. Horace is living and has one son, who was born prior to the death of the testator. Emma had one son born before the death of the testator, but he died August 25, 1905, prior to the death of the widow. Emma died April 20, 1919, without leaving a descendant. The only question presented for our consideration is as to the disposition of the corpus of the fund held for the daughter Emma during her life.

The surrogate's court and the Appellate Division have held that the corpus of such fund be divided into two equal parts and that one of such parts be divided among the children of Eleanore living at the death of Emma and that the other of such parts be paid to the son of Horace. The surrogate in the decision finds:

‘It was the intent of the testator that the corpus of his estate should vest absolutely in his grandchildren and never should vest in his own children.’

[1][2] When the intention of a testator is reasonably clear, and it is not in violation of any statute, it must be enforced. Cammann v. Bailey, 210 N. Y. 19, 103 N. E. 824. It was said by Judge Pound, now of this court, in Baker v. Gerow (Sup.) 126 N. Y. Supp. 277:

‘In construing a will, it has been repeatedly held that the object of the courts is to ascertain, not the intention simply, but the expressed intention, of the testator; i. e., the intention which the will itself, either expressly or by implication, declares. In other words, it is the duty of the court to ascertain the intention of the testator from the words he has used, and to ascertain and give effect to the legal consequences of that intention when ascertained.’

[3] We think the learned surrogate and the Appellate Division were mistaken in holding, in substance, that it was the intent of the testator, ‘that the corpus of his estate should vest absolutely in his grandchildren.’ The intent of the testator as expressed by him in his will was that the corpus of the estate should be held in trust for the benefit of his widow and his children severally as in the will provided and after the death of his widow and of the children, severally, the corpus ‘be turned over and shall belong to the then living heirs' of such child.

The interests of the grandchildren in the trust fund prior to the death of the widow and of the children severally were contingent upon such grandchildren severally living until the corpus of the fund should be turned over as provided by the will, and also contingent upon a redivision or upon redivisions thereof by...