In re Watson's Will

• Decision Date: 28 June 1932
• Citation: 258 N.Y.S. 755,144 Misc. 213
• Parties: In the Matter of the Estate of EMILY A. WATSON, Deceased.
• Court: New York Surrogate Court

144 Misc. 213

258 N.Y.S. 755

In the Matter of the Estate of EMILY A. WATSON, Deceased.

Surrogate's Court, Westchester County.

June 28, 1932

Proceeding on accounting of testamentary trustee involving the construction of the will of the deceased.

Submit decree in accordance with these views, with notice to all attorneys appearing.

SYLLABUS

The testatrix left the remainder of her estate to a trustee "to divide the same into as many shares or portions as there may be children of my cousin, Harvey A. Dwight, and grandchildren of my cousin, George W. Pratt, surviving at the time of my death, and to invest and keep invested one such share or portion for the benefit of each child of my said cousin, Harvey A. Dwight, and each grandchild of my said cousin George W. Pratt, then surviving, and to pay over the income and profits therefrom to the child or grandchild for whose benefit such fund is so held, during his or her natural life, and upon his or her death to pay over and deliver the principal of the fund with all accumulated income to his or her issue, per stirpes, and in default of such issue, I direct that the same be divided equally between said surviving children and grandchildren and the issue of any who may have died, per stirpes." One of the children of the cousin Dwight for whom a trust had been set up survived the testatrix, but died without issue.

In this proceeding in which two children of a predeceased son of the cousin Dwight and the two children of a predeceased granddaughter of the cousin Pratt, claim to be entitled under the will to a share of the corpus of the trust fund held for the life of a child of the cousin Dwight who survived the testatrix but died without issue, a judgment in an action in the Supreme Court, the purpose of which was to determine the number of trust shares, is not res judicata, since the actions are substantially different as to the rights and interests affected.

The children and grandchildren of the two cousins who survived the testatrix took vested remainders subject to be divested by the birth of issue to the life beneficiary.

The gift to the children and grandchildren of the two cousins having vested in them, it must necessarily follow that the words "and the issue of any who may have died, per stirpes" could not refer to or mean them. It was the intention of the testatrix to provide, and by the use of her language she did provide, an additional gift to the use of any child of Dwight or grandchild of Pratt who may have died before her.

Accordingly the two children of a predeceased son of the cousin Dwight together take an equal share in the remainder of the trust fund created for the child of the cousin Dwight who survived the testatrix and died without issue and the two children of a predeceased granddaughter of the cousin Pratt together take another equal share in said remainder.

The estate of the child of the cousin Dwight who survived the testatrix and died without issue takes an equal share because he had a vested remainder in the fund.

Under the provision of the will directing the trustee, upon the death of the life beneficiary "to pay over and deliver the principal of the fund, with all accumulated income" to the ultimate remaindermen, the estate of the child of the cousin Dwight who survived the testatrix and died without issue is entitled to the accrued income in the hands of the trustee to the date of his death, pursuant to section 204 of the Surrogate's Court Act.

COUNSEL

Stewart & Shearer for the accounting trustee.

Wiswall, Walton, Wood & MacAffer [Frank L. Wiswall and A. Kendall Roberts of counsel], for Harvey A. Dwight, Jessie R. Dwight Orage, Elizabeth von der Decken and G. F. von Finckenstein, remaindermen.

Lynn, Wandless & Lanier [Edgar G. Wandless of counsel], for remaindermen.

Coudert Brothers [Thomas W. Kelly of counsel], for remaindermen.

Taylor, Blanc, Capron & Marsh, for Herwarth von der Decken.

Arthur McCausland, for the executor of John Watson Dwight, deceased life tenant.

William S. Siemon, for remaindermen under the will of John Watson Dwight.

White & Case, for Jean B. Dwight, Lucia King Dwight and Harriette D. Bailey.

SLATER S.

On this accounting proceeding, three questions are pr esented for decision and relate to the construction of the will of the testatrix.

Emily A. Watson, a maiden lady of over eighty years of age, died on February 1, 1924, a resident of Westchester county, leaving a last will and testament executed on June 7, 1915, and a codicil thereto executed on August 6, 1915, which were admitted to probate on December 19, 1924.

Her estate was upwards of $12,000,000. Prior to the execution of the will, the testatrix had made four wills which were executed by her in the years 1900, 1903, 1907 and 1912, respectively. The tenth paragraph of the will in which we are now interested was identical with the tenth paragraph of every former will.

The tenth paragraph of her will is as follows:

'Tenth. All the rest, residue and remainder of my property, both real and personal, of whatever kind or nature and wherever situate, as well that which I may hereafter acquire as that which I now possess, I give, devise and bequeath to the United States Trust Company of New York, in trust, however, to divide the same into as many shares or portions as there may be children of my cousin, Harvey A. Dwight, and grandchildren of my cousin, George W. Pratt, surviving at the time of my death, and to invest and keep invested one such share or portion for the benefit of each child of my said cousin, Harvey A. Dwight, and each grandchild of my said cousin George W. Pratt, then surviving, and to pay over the income and profits therefrom to the child or grandchild for whose benefit such fund is so held, during his or her natural life, and upon his or her death to pay over and deliver the principal of the fund with all accumulated income to his or her issue, per stirpes, and in default of such issue, I direct that the same be divided equally between said surviving children and grandchildren and the issue of any who may have died, per stirpes.'

The estate was an unusual one, not alone in its size, but in other respects. For instance, the will was contested, temporary administration was had, and the allowance to counsel and the commissions of the temporary administrators and the executors were very large. The court effected a compromise of the contest by the payment of over $1,000,000 to the contestants. Upon the accounting of the executors, with all these payments, the estate was the same size it was at the time the decedent died. This was brought about by the character of the securities and the inflation of the times. After the inheritance taxes to the State and Federal government were paid, it was found that about $1,000,000 could be set up for each of the seven trusts representing the surviving grandchildren and children of the two cousins. The executors accounted under date of December 22, 1925, and trusts were set up for the following persons: (1) Harriette D. Bailey; (2) Jean B. Dwight; (3) Lucia K. Dwight, and (4) John Watson Dwight, the four surviving children of the cousin, Harvey A. Dwight, and (1) Comtesse Victoire Louise Niel; (2) Countess Pauline Andre de Gasquet James de la Mettrie, and (3) Count George Watson Pratt de Gasquet James, the three surviving grandchildren of the cousin, George W. Pratt. Harvey L. Dwight, a son of the cousin, Harvey A. Dwight, died in 1910, before the testatrix, leaving his children, Harvey A. Dwight and Jessie R. Dwight Orage. In 1907 Elizabeth Bleecker von der Decken predeceased the testatrix, leaving two children, Herwarth von der Decken and Elizabeth Grafin Finck von Finckenstein.

One of the trusts set up was for John Watson Dwight, one of the children of the cousin, Harvey A. Dwight, who survived the testatrix. John Watson Dwight died unmarried and without issue, leaving a will admitted to probate in New York county January 13, 1932. It becomes necessary to determine who is entitled to take the remainder of the trust fund heretofore held for his benefit and the income which had accrued thereon up to the date of his death.

It is the contention of Harvey A. Dwight and Jessie R. Dwight Orage, children of Harvey L. Dwight, a predeceased son of the cousin, Harvey A. Dwight, and the two children of Elizabeth Bleecker von der Decken, a predeceased granddaughter of the cousin, George W. Pratt, that they take a share or portion of the corpus of the trust fund held for the life of John Watson Dwight, and the accrued income now being accounted for, under that part of the tenth paragraph -- the last eleven words -- which says: 'and the issue of any who may have died per stirpes.'

The surviving children of the cousin, Harvey A. Dwight, with the exception of John Watson Dwight, who has died, and the surviving grandchildren of George W. Pratt contend that the principal of the trust fund and the accrued income should be divided into six equal parts and one of such parts should be paid to each of them. This contention excludes the two children of Harvey L. Dwight, a son of Harvey A. Dwight, who predeceased the testatrix, and the two children of Elizabeth Bleecker von der Decken, a granddaughter of George W. Pratt, who predeceased the testatrix, and also excludes the estate of John Watson Dwight as a participant.

An action, Dwight v. Fancher, was had in Albany county in 1926 (217 A.D. 377; affd., 245 N.Y. 71), wherein the plaintiffs were Harvey A. Dwight and Jessie R. Dwight Orage, the children of Harvey L. Dwight, a son of Harvey A. Dwight, the cousin. The contention of the plaintiffs in such action was that they stood in the position of their deceased father and that a share in the corpus should be...