In re Title Guarantee & Trust Co.

• Decision Date: 11 May 1909
• Citation: 88 N.E. 375,195 N.Y. 339
• Parties: In re TITLE GUARANTEE & TRUST CO.
• Court: New York Court of Appeals Court of Appeals

195 N.Y. 339

88 N.E. 375

In re TITLE GUARANTEE & TRUST CO.

Court of Appeals of New York.

May 11, 1909.

Appeal from Supreme Court, Appellate Division, Second Department.

In the matter of the judicial settlement of the accounts of the Title Guarantee & Trust Company, as trustee under the will of Alfred T. Baxter, deceased. From an order of the Appellate Division (127 App. Div. 118,111 N. Y. Supp. 169) reversing and modifying a decree of the Surrogate's Court construing the will, George W. Robinson and others, legatees under the will, appeal. Order of the Appellate Division reversed, and decree of Surrogate's Court affirmed.George W. Robinson and Albert W. Linton, for appellants.

George S. Ingraham, for respondents.

EDWARD T. BARTLETT, J.

Alfred T. Baxter, the testator, died possessed of a large estate consisting of personal property. He bequeathed to his wife, Julia, $15,000, his furniture and household property, and effects generally. He also bequeathed some 15 or more general legacies to various relatives. Then followed these provisions:

‘Eighteenth. I give to my said executor the sum of twenty thousand dollars in trust to keep the same invested, and to pay the net rents, issues, income and profits thereof, semiannually, to my wife, Julia, during her life, and upon her death, it is my will that the principal of the fund so set apart in trust for her, together with any accumulated income therefrom, that there then may be, be paid into and form a part of my residuary estate hereinafter disposed of.

‘Nineteenth. I give to my said executor the sum of ten thousand dollars in trust, to keep the same invested, and to pay the net rents, issues, income and profits thereof, semiannually to my adopted daughter Melanie during her life and upon her death, it is my will that the principal of the fund so set apart, in trust, for her together with any accumulated income therefrom that then there may be, be paid into and form a part of my residuary estate hereinafter disposed of.’

The twenty-second paragraph states in its opening clause as follows: ‘All the rest, residue and remainder of my estate of whatever kind, nature and description and wheresoever situated, I give, devise and bequeath to my said executors, in trust to take possession thereof and convert the same into money and to pay over,’ etc. Then follows the direction to pay over to three certain charitable societies named one-sixth part each of said proceeds and to two nephews and a brother one-sixth part each. It is to be observed that these relatives named are also general legatees.

Down to this point we have disclosed the complete scheme of the testator, which assumed there was an estate sufficient in amount to pay general legacies, carry out the provisions of the trusts for wife and daughter, and realize a surplus designated by the testator as ‘the rest, residue and remainder of my estate,’ which was to be distributed one-half to charitable societies and the balance to relatives, who were also general legatees. The testator further provided that, upon the death of his wife or daughter, the trust funds set apart for their benefit, respectively, should be a part of his residuary estate. The testator then, as a prudent man, provided for the contingency of insufficient assets, as follows: ‘Twenty-fifth. In case my estate proves inadequate and insufficient to meet and satisfy all the provisions, of this my will, as hereinbefore provided, then and in that case it is my will that the trust funds herein set apart for the benefit of my adopted son, Frederick W. Baxter, and the several legacies and bequests herein made, except the provision herein made for my wife, Julia, and my adopted daughter Melanie be reduced pro rata and in proportion to such deficiency, if any such there be, to the end that the said reduction shall equal in the aggregate the amount of such deficiency and no more.’ We have here expressed the clear direction of the testator that the several legacies and bequests he had made were to be reduced pro rata and in proportion to such deficiency, but that the funds set apart for the benefit of his wife and daughter should be...