Platt v. Mickle

• Decision Date: 31 January 1893
• Citation: 137 N.Y. 106,32 N.E. 1070
• Parties: PLATT v. MICKLE et al.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 106

32 N.E. 1070

PLATT

v.MICKLE et al.

Court of Appeals of New York.

Jan. 31, 1893.

Appeal from supreme court, general term, first department.

Action by James N. Platt, as trustee under the will of Rachel Miller, deceased, against Andrew H. Mickle, George Mickle, and Lizzie Mickle, as executrix of George Benjamin Mickle, deceased, for the construction of a will, to which Lizzie Mickle, individually, was made a party subsequent to the commencement of the suit. From a judgment of the general term (18 N. Y. Supp. 408) affirming a judgment construing the will against the defendant Lizzie Mickle, she appeals. Affirmed.

H. G. Harris, for appellant.

John W. Weed, for respondents.

GRAY, J.

In the distribution of this trust fund, held by plaintiff as trustee under the provisions of the will of Rachel Miller, deceased, Andrew and George Mickle, sons of her deceased grandson, George Benjamin Mickle, claim to be entitled to share, to the exclusion of Lizzie Mickle, the widow of their father. She insists upon her right to share in it, upon the ground that she should be regarded as one of her husband's next of kin, to whom Rachel Miller by her will had given her grandson's share upon his decease. Turning to the will in question, which was made in 1847, we find that she had created a trust in one fourth of her residuary estate for the benefit of her grandson during his life, and directed that such trust estate should determine upon his decease. I will quote her further language: ‘And I thereupon, after his decease, give, devise, and bequeath all his said one-fourth part of the said rest and residue of the said trust estate then being in the hands of my said executors and trustees, the survivor or survivors of them, their heirs, legal representatives, or successors, to such person or persons as shall then be the heirs at law and next of kin of my said grandson George Benjamin, respectively, in such parts, shares, and proportions as, having regard to the form in which the said estate shall then exist, such heirs and next of kin would have been then respectively entitled thereto and therein by law if my said grandson had been seised thereof in fee simple as an inheritance on the part of his mother, or possessed of the same, and he had died intestate, and they had inherited or become entitled thereto from my said grandson George Benjamin Mickle.’ The appellant wants us to hold that the words ‘next of kin’ were not used in their strict...