Livingston v. Ward

Citation159 N.E. 875,247 N.Y. 97
PartiesLIVINGSTON et al. v. WARD et al.
Decision Date10 January 1928
CourtNew York Court of Appeals

Action by Marie S. Livingston, as administratrix of the estate of Robert L. Livingston, deceased, and others, against Henry Galbraith Ward and another as trustees and others. From judgment of Appellate Division, First Department (216 App. Div. 675, 216 N. Y. S. 37), reversing as matter of law a judgment of Special Term dismissing complaint on the merits, named defendant and certain others appeal.

Judgment of Appellate Division reversed, and that of Special Term affirmed.

See, also, 246 N. Y. 234, 158 N. E. 313; 216 App. Div. 698, 216 N. Y. S. 58.

Appeal from Supreme Court, Appellate Division, First department.

Charles E. Hughes, Herman S. Hertwig, Langdon P. Marvin and Henry B. Closson, all of New York City, for appellants Henry G. Ward et al., as trustees, and others.

Louis O. Van Doren and William R. Conklin, both of New York City, and Edward S. Bentley, of Lawrence, for appellant Ladies' Home Society.

Russell Benedict, William A. Alcock, Williston Benedict, Frederic de Peyster Foster and George N. Whittlesey, all of New York City, for appellants Association for Relief of Indigent Females and others.

J. Culbert Palmer, Jr., and Perry D. Trafford, both of New York City, for appellant Society for Relief of Poor Widows.

Alfred R. Page, of New York City, for plaintiffs-respondents.

Joseph W. Welsh, Roland L. Redmond, Alfred C. Petté, Philip M. Brett and W. A. W. Stewart, all of New York City, and Frank B. Holsapple, of Hudson, for defendants-respondents.

John N. Drake, of New York City, for Brockholst Livingston, defendant-respondent.


In May, 1885, James Thomson executed a trust deed of premises known as No. 49 Broadway. The deed recites that a marriage is about to be solemnized between the grantor and Anne D. Parsons, and that the purpose of the conveyance is to make provision for the said Anne D. Parsons pursuant to an antenuptial agreement. The deed provides that the trustee should hold the premises from and after the said marriage to the uses and purposes thereinafter declared. The trustee was to pay out of the net rents, income, and profits to the said Ann D. Parsons the yearly sum of $3,000, ‘and the residue of the rents, income and profits to pay to the said James Thomson and his assigns during the term of his natural life, and from and after the decease of the said James Thomson in the lifetime of the said Anne D. Parsons to pay the entire rents, income and profits of the said premises to the said Anne D. Parsons or her assigns during the term of her natural life and from and after the decease of the said Anne D. Parsons to convey the said land and premises to the said James Thomson, his heirs and assigns forever.’

The marriage was solemnized and the terms of the trust deed were carried out during the lifetime of the grantor and his wife. No children were born of the marriage. The grantor, James Thomson, died December 1, 1897, leaving a last will and testament dated May 18, 1888. The original trustee predeceased the grantor by a few months. After the death of James Thomson, his widow, pursuant to a power granted to her by the trust deed, executed a new trust indenture appointing Henry Galbraith Ward and Charles M. Hough trustees in the place of the deceased trustee. They continued to collect the rents, income, and profits, and paid them over to the widow, Anne D. Thomson. She died on May 6, 1923, leaving a last will and testament. The plaintiffs claim that under the provisions of the trust deed the heirs, at law of the grantor became entitled to the possession and enjoyment of the trust property after the death of Anne D. Thomson.

The claim of the plaintiffs is disputed by other parties to the action. The executor and the residuary legatees and devisees of Anne D. Thomson urge that the fee of the trust property passed to their testatrix under the will of James Thomson. Some of the defendants are charitable organizations, who urge that, under that will, the grantor and testator bequeathed his residuary estate, including a reversion in the turst property, to them after the death of Mrs. Anne D. Thomson. Another group urges that, as to this property James Thomson died intestate. They claim by descent as his heirs at law. The conflicting claims of the parties rest upon varying constructions of the trust deed and the subsequent will of James Thomson. James Thomson died possessed of other property not covered by the trust deed. In the case of Livingston v. Livingston, the same plaintiffs claim an interest in that property. The questions there raised depend for solution solely upon construction of the will. Judgment upon the pleadings was granted at Special Term in both actions by Mr. Justice Vernon M. Davis in favor of the parties claiming under the will of Anne D. Thomson. We agree with the construction he has placed upon both deed and will.

[1] By the deed of trust the grantor created an equitable interest in the trust property in favor of his prospective wife and himself during the life of his wife. The trustee might hold the property only as long as the wife lived. The grantor cut a life estate out of his fee. All other legal interest and estate remained in, or reverted to, the grantor and his heirs. Real Property Law, § 102; Consol. Laws, c. 50. In unmistakable language the grantor has evinced an intention that, after the life estate had ended, the fee of the property should belong to himself, his heirs and assigns. The direction to the trustees to convey the fee is unnecessary and without legal effect. It cannot result in giving the grantor a larger estate than he already possessed. It does not show any intent by the grantor to divest himself of any part of his estate or to transfer it to his heirs. A similar situation was presented in the case of Doctor v. Hughes, 225 N. Y. 305, 122 N. E. 221. All that we said there applies with equal force to the trust deed now under consideration.

The grantor has made a will which was duly probated. If in that will he made a valid devise of all his property, his reversionary estate in No. 49 Broadway has passed to the devisee or devisees named therein. If the grantor died intestate as to this estate, it has passed by descent to his heirs. The will of James Thomson, the grantor, abounds in technical legal expressions, but it is evident that the language is that of the educated layman rather than that of the skilled legal draftsman. The will contains a number of specific bequests but mentions no specific property, real or personal, of the testator. After these specific bequests, the testator provided:

‘Fifteenth: All the rest, residue and remainder of my estate real and personal, of every name, kind and description which I may own at the time of my decease, wheresoever the same may be situate, I do give, devise and bequeath unto my beloved wife Anne D. Thomson (daughter of George M. Parsons, of Columbus, Ohio), to have and to hold all and singular the real and personal estate hereby devised and bequeathed unto my said wife Anne D. Thomson, in lieu of dower.’

There is nothing in the language which suggests that the testator intended to exclude from his residuary estate the reversion in No. 49 Broadway. That passes under the residuary clause of the will.

[2][3][4] The testamentary intent of the grantor is embodied in the will read in its entirety. Disposition of property made in one clause of the will may throw light upon the menaing which the testator intended should be given to the language of another clause. If the will contained no provision of any kind for the disposition of the residuary estate except the bequest to the testator's wife in clause fifteenth, there could be no doubt that the testator intended that Mrs. Thomson should take the fee of the estate as her absolute property. There is no express limitation upon the duration of the estate transferred, and no qualification of the completeness of the bequest and devise is either expressed or implied in the language of that clause. A suggestion is made that, though the estate of the wife is not expressly limited to a life estate, such limitation should be implied because of the provision that the wife is to ‘have and to hold all and singular the real and personal estate hereby devised and bequeathed unto my said wife Anne D. Thomson, in lieu of dower.’ We are...

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  • In re Gilchrist's Estate
    • United States
    • United States State Supreme Court of Wyoming
    • June 9, 1936
    ...... Cronan v. Cronan, (Mass.) 190 N.E. 721; Stephens. v. Dennis, 72 S.W.2d 630; Kosa v. Boucek,. (Kan.) 42 P.2d 596; Livingston v. Ward, (N. Y.) . 159 N.E. 875; Johnson v. Haldane, 124 A. 63;. Garth v. Myrick, 3 Bro. C. C. 30, 28 Eng. Repr. 966;. Finlay v. King's ......
  • McKenna v. Seattle-First Nat. Bank, 31114.
    • United States
    • United States State Supreme Court of Washington
    • February 10, 1950
    ...was superfluous, Doctor v. Hughes, 225 N.Y. 305, 122 N.E. 221, since it would have been required to do so in any case. Livingston v. Ward, 247 N.Y. 97, 159 N.E. 875. The bank, therefore, took an interest which could endure for a term no greater than that embraced by the life estates. 'The r......
  • McKenna v. Seattle-First Nat. Bank, 31114.
    • United States
    • United States State Supreme Court of Washington
    • February 10, 1950
    ...... Hughes, 225 N.Y. 305, 122 N.E. 221, since it would have. been required to do so in any case. Livingston v. Ward, 247 N.Y. 97, 159 N.E. 875. The bank, therefore,. took an interest which could endure for a term no greater. than that ......
  • Commissioner of Internal Revenue v. Brown, 7716.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 4, 1941
    ...regain the corpus. The Commissioner cites 1 Scott on Trusts, Section 127.1; Doctor v. Hughes, 225 N.Y. 305, 122 N.E. 221; Livingston v. Ward, 247 N.Y. 97, 159 N.E. 875; Berlenbach v. Chemical Bank & Trust Co., 260 N.Y. 539, 184 N.E. 83 (No. 2); and other cases; together with Section 23 of t......
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