In re Wing's Estate

• Decision Date: 23 November 1897
• Citation: 48 N.E. 537,154 N.Y. 313
• Parties: In re WING'S ESTATE. In re BROWN et al.
• Court: New York Court of Appeals Court of Appeals

154 N.Y. 313

48 N.E. 537

In re WING'S ESTATE. In re BROWN et al.

Court of Appeals of New York.

Nov. 23, 1897.

Appeal from supreme court, general term, Third department.

In the matter of the accounting of Stephen Brown and Dwight Merriman, as trustees under the will of Abraham Wing, deceased. From a judgment of the general term (36 N. Y. Supp. 131) affirming a decree of the surrogate, Ella W. Sharp appeals. Affirmed.

Richard L. Hand, for appellant.

Edwin Countryman, for respondents.

Charles A. Blair, for respondent William H. Withington.

A. D. Wait, for respondent Dwight Merriman.

HAIGHT, J.

The question presented for review arises out of the construction which should be given to the will of Abraham Wing, who died on the 13th day of June, 1873, leaving, him surviving, his widow, Frances A., and two daughters, Mary W., the wife of Dwight Merriman, and Ella W. Parker. At the time of his decease, his daughter Mary W. had three children,-Tracy D., Ella W., and Howard L. Merriman. His daughter Ella W. also had children, but they have no interest involved in this appeal. All of the testator's grandchildren were born before the execution of the will, and survived the testator. Tracy D. Merriman died intestate, unmarried, January 19, 1880. Mary W. Merriman died June 10, 1892. Howard L. Merriman died August 4, 1893. The testator's daughter Ella W. Parker died October 3, 1892. All of her children survived. The appellant, Ella W. Sharp, is the sole surviving child of Mary W. Merriman. The widow of the testator, Frances A., is still living, and has never remarried. The testator devised and bequeathed to his widow his mansion-house lot, so called, during the time that she should remain his widow, and also gave her other personal property, together with an annuity of $3,000. Other specific bequests were made, which are not involved in this controversy. He then gave and devised all the rest and residue of his real and personal estate, of whatever name or kind, and wheresoever situate, to his executors, in trust for the purposes named in his will, which he fully described, and then, by the fourth and fifth clauses of his will, provided: ‘Fourth. I hereby authorize and direct my executors to apply and appropriate the avails and proceeds of said property and income therefrom to the uses and purposes following: (1) To pay my funeral expenses and all of my just debts. (2) To pay the above-mentioned annuity to my wife, and also so much more money (if any) as shall be at any time and all times necessary and proper, in the discretion of my executors, for the support and maintenance of said Frances A., and to enable her to keep up and support the same style of living and expenditure of money in all respects, including charitable and other purposes, that she has heretofore enjoyed or now enjoys; and my executors are hereby authorized and directed to pay such sum or sums of money in addition to said annuity as may from time to time be proper, in their discretion,for such purpose to said Frances A. Wing, and her receipts therefor shall be a sufficient discharge to them and voucher for money so paid. (3) To furnish whatever money may be necessary, in the discretion of my executors, for the reasonable care and support of my sister Mary Ann Wing from time to time as she shall need the same, and also to pay her funeral expenses. (4) To pay over all the balance of the income and increase of my estate, except the expenses of the execution of this trust, including taxes and all other legal charges thereon (which are to be first paid), annually until the death or marriage of said Frances A. to my said daughters, Mary W. Merriman and Ella W. Parker, share and share alike, for their own use and benefit, respectively; and in case of the decease of either of said daughters during the widowhood of said Frances A., as aforesaid, then, and in such case, to pay the (half) share of said income to the children of such deceased daughter which would have belonged and been paid to the deceased daughter had she survived; and, in case of the death of both of said daughters during the widowhood of said Frances A., then such income shall be paid and belong to the children of said daughters, respectively, one-half of said income to the children of Mary W., and the other half to the children of Ella W., from and after the death of each of said daughters respectively. Fifth. I direct my executors on the death, or, if she shall marry, then on the marriage, of said Frances A., to convert said mansion-house lot and any other real estate remaining undisposed of (if any) into personal property, so that my whole estate shall become personal property; and if my sister Mary Ann shall then be living, to set apart the sum of ($5,000) five thousand dollars therefrom, and invest the same as a fund out of which, and the income therefrom, my executors shall provide for her support and maintenance during her lifetime, as above directed, and funeral expenses; and whatever may not be used and appropriated for that purpose I give and bequeath as follows: If my daughters shall be both living, one-half to each of them; if one daughter only shall be then living, one-half to her, and the other half to the children of the deceased daughter; and if both daughters shall be deceased, then one-half to the children of one daughter, and the other half to the children of the other daughter, and the balance (after deducting said $5,000) and the whole, if said Mary Ann shall not survive the death or marriage of said Frances A., shall be divided into two equal parts, share and share alike, by my executors, and be disposed of as follows: (1) If neither of my daughters shall be then living, one of said half parts shall be paid to the children of said Mary W., and the other half to the children of said Ella W. (2) If one of said daughters shall be then living, and the other deceased, then one of said parts shall be paid to the children of the deceased daughter, and the other half parts shall be invested and kept invested by my executors during the lifetime of such surviving daughter, and the income therefrom shall be annually paid over to her, and on her decease the principal shall be paid over to her children. (3) If both my said daughters shall be then living, then one of said half parts shall be set apart for and assigned to the children of Mary W., and kept invested by my executors during her lifetime, and the income thereof paid over annually to said Mary W.; and on her decease the principal of such half part shall be paid over to her children, and the other half part shall be set apart for and assigned to the children of said Ella W., and kept invested by my executors during her lifetime, and the income thereof paid over annually to said Ella W., and on her decease the principal of such half part shall be paid to her children. It being my intention and will that my said daughters shall have and enjoy absolutely for their own property during their lives, respectively, each one-half of the whole income of my state from the date of my decease (subject, however, to the provisions and bequests in favor of my wife and sister, and all taxes, the expenses of executing the trusts herein created, and all other legal charges, and also excepting the real estate and use thereof devised to said Mary W. and her children), but no part of the principal (except said $5,000 or the balance thereof which may remain after the decease of my sister Mary Ann), and that the principal (except said $5,000 or the balance thereof unexpended, and said devises in fee) shall be equally divided between the children of said daughters absolutely for their own property, subject, however, to the above-provided life estates in the same; one-half to the children of Mary W., and the other half to the children of Ella W. And the receipts of said Mary W. and Ella W., respectively, for such income, shall be a sufficient discharge and voucher to my executors.’

The appellant claims that, upon the death of her mother, she, by reason of the prior death of her brother Tracy, became entitled to one-half of the income enjoyed by her mother in her lifetime; and that, after the death of her brother Howard, she, as the only surviving child, became entitled to the whole income; and that upon the death of her grandmother, the testator's widow, she will be entitled to the corpus of one-half of the whole of the trust estate, the children of Ella W. Parker being entitled to the other half. The surrogate held that, upon the death of the testator, his grandchildren by his daughter Mary took a vested interest in one-half of the estate, subject to the outstanding life estates provided for by the trust; and that his grandchildren by his daughter Ella W. took a like vested interest in the other half of the trust estate; and that one-third of the net income thereof, after the death of her mother, belongs to the appellant, one-third to Withington, as administrator, etc., of Howard L. Merriman, deceased, and one-third to Dwight Merriman, individually, as father and next of kin of Tracy W. Merriman, deceased. It will at once be observed that the controlling question is whether the estate vested in the grandchildren upon the death of the testator, subject to the outstanding life estates.

The statute provides that ‘future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent while the person to whom or the event upon which they are limited to take effect remains uncertain.’ 1 Rev. St. p. 723, § 13. Upon the death of the testator the grandchildren were all in being. Under the will, they had the immediate right to the possession of the estate upon the termination of the life estates. Their estates were therefore vested at the time of the death of the testator, unless...