Powers' Will, In re

• Decision Date: 14 November 1960
• Citation: 27 Misc.2d 179,210 N.Y.S.2d 639
• Parties: In re POWERS' WILL. Petition of KINGS COUNTY TRUST COMPANY to render and settle its account as Substituted Trustee of the Trust for Robert De Bevoise Powers, also known as Robert D. Powers, created under the Last Will and Testament of George A. Powers, late of the County of Kings, deceased. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 639

210 N.Y.S.2d 639

27 Misc.2d 179

In re POWERS' WILL.

Petition of KINGS COUNTY TRUST COMPANY to render and settle

its account as Substituted Trustee of the Trust for Robert

De Bevoise Powers, also known as Robert D. Powers, created

under the Last Will and Testament of George A. Powers, late

of the County of Kings, deceased.

Surrogate's Court, Kings County.

Nov. 14, 1960.

Wrenn & Schmid, Brooklyn, for Kings County Trust Co., substituted trustee, petitioner.

Herbert Carr, Brooklyn, special guardian for Geraldine Ann Powers, an infant, and for widow, if any, and unknowns of Franklin Marsh, etc., deceased.

Wingate & Cullen, Brooklyn, for First Nat. City Bank of N. Y., as executor and trustee under the last will and testament of Mary L. O'Flyn, deceased.

Julius Curtis, New York City, for Victoria Powers Curtis (J. George Silberstein, New York City, of counsel).

W. B. Manee, Scarsdale, for Georgianna Powers Goerke. William S. Duncan, New York City, as sole surviving executor and trustee of Thomas Powers, as executor of Robert D. Powers, for Harry J. Gehl.

Joseph T. Arenson, New York City, for Public Adm'r of New York Co .

Charles Hollendar, New York City, for Edward Monroe O'Flyn.

Louis J. Lefkowitz, Atty. Gen., for estate of Franklin Marsh, deceased, possible remainderman.

Angulo, Cooney, Marsh & Ouchterloney, New York City, for First Nat. City Trust Co.

H. Howard Babcock, New York City, for Florence E. Woodworth, Florence R. Powers, George A. Powers, Jr., and Thomas E. Powers.

MAXIMILIAN MOSS, Surrogate.

This proceeding seeks the judicial settlement of the account of petitioner as substituted trustee of the secondary trust for testator's grandson, Robert DeBevoise Powers, which terminated by his death on July 21, 1958, without issue. Petitioner further presents a question of construction to determine the persons entitled to receive the remainder of the trust estate and in what proportions under the trust provisions contained in paragraph Twelfth of testator's will as modified by paragraph First of the codicil.

Testator died on December 27, 1899, leaving a will dated May 13, 1893 and a codicil dated May 15, 1895 which were duly admitted to probate on May 15, 1900. He was survived by five children as sole distributees, all of whom predeceased the termination of the trust involved herein, two leaving no issue. Paragraph Twelfth of the will established a primary trust of certain real property with directions to pay the net income to his son, William Powers, during his life. The disposition of the remainder upon William's death was altered by paragraph First of the codicil which reads as follows:

'First: I hereby alter the trust provisions contained in the 12th subdivision of my Will in favor of my son, William and his descendants as follows, that is to say: at the death of my said son William, or, in case I survive him, then upon my death, I direct that the lands and real estate devised in said 12th subdivision of my Will to my son George Powers in trust, be divided by said trustee or his successor or successors, into as many equal parts as shall equal the number of children of my said son William then living and who shall be living at the time of my death; and I direct that one of the said parts shall be held by said trustee, his successor or successors, as trustees under said 12th subdivision of my Will during the life of each of my said grandchildren, and the net income be paid to said grandchild during his or her life, that is to say, one share as a separate trust for each grandchild; and upon the death of each grandchild the property so held in trust for him or her shall become the property of his or her surviving descendants, if any, to whom I give and devise the same; or, if there be no such descendants, then the same shall become the property of my heirs at law according to the present laws of the State of New York.'

The italicized subjunctive clause in the foregoing paragraph of the codicil is the portion to be construed. William Powers, the primary life beneficiary, died on November 6, 1921, leaving him surviving two sons, William Harold Powers and Robert DeBevoise Powers, and no other descendants. In consequence, the trust estate became divisible and was set up as separate trusts for the benefit of said two sons during their respective lives pursuant to accounting decree dated May 1, 1923. The trust for William Harold Powers was judicially settled by final decree dated June 20, 1946, pursuant to which the personal property of said trust was distributed to his daughter, Georgianna Powers Goerke.

As to the trust accounted for herein, since the second life beneficiary, Robert DeBevoise Powers, died and left no descendants to take the remainder, the question for determination is: Did testator intend that the trust property should pass to his heirs as of the time of his own death or as of the time of death of said life beneficiary, i. e., the class of persons who would constitute his heirs if he were deemed to die, possessed of such property, immediately after the death of said life beneficiary? In either case membership in the class of heirs is to be determined and distribution made 'according to the present laws of the State of New York.'

The general rule of testamentary construction is that the class described by a testator as his heirs at law to whom a remainder interest is given by will, is to be ascertained as of the date of death of the testator in the absence of an expressed or implied intention to the contrary (Matter of Bump's Will, 234 N.Y. 60, 136 N.E. 295; Matter of White's Will, 213 App.Div. 82, 209 N.Y.S . 433). Such an intention to the contrary may be derived from the language of the will or from the general testamentary scheme or surrounding circumstances (Matter of Fabbri's Will, 2 N.Y.2d 236, 159 N.Y.S.2d 184; Matter of Cutter's Will, 5 Misc.2d 737, 161 N.Y.S.2d 320, affirmed 4 A.D.2d 966, 168 N.Y.S.2d 366, affirmed 5 N.Y.2d 1018, 185 N.Y.S.2d 269) in any of which events the class will be determined as of the date of death of the life beneficiary when the trust would terminate and the remainder be distributed.

Intention is the controlling although often elusive factor in solving any problem of construction. There is no formula or set pattern which can be relied upon, more often it is a case of balancing probabilities. Each case must depend upon its own peculiar facts and circumstances which seldom are the same in any two cases.

Precedents are however helpful as examples of the application by the courts of the established indicia of intent. There is a line of cases which establishes the rule of construction that where there is a primary gift of a remainder to a class the members of which are to be determined at the termination of the trust and a substitutional or secondary gift to heirs in the event that none of the primary beneficiaries are living at the termination of the trust, the primary gift to the class being contingent, the secondary or substitutional gift to heirs is also contingent and the class of heirs entitled to take should be determined at the death of the life tenant. Salter v. Drowne, 205 N .Y. 204, 98 N.E. 401; Matter of Fishel's Estate, 167 Misc. 145, 3 N.Y.S.2d 669, affirmed 256 App.Div. 915, 10 N.Y.S.2d 859, appeal denied 280 N.Y. 851, 20 N.E.2d 397; Matter of Sayre's Will, 1 A.D.2d 475, 151 N.Y.S.2d 506, affirmed In re Cross' Estate, 2 N.Y.2d 929, 161 N.Y.S.2d 890; Matter of Thibaut, 6 Misc.2d 376, 162 N.Y.S.2d 757 .

In Matter of Sayre's Will (supra) both the reasoning and application are appropriate to the instant matter. There testator gave all his property in trust with income to his wife for life, and at her death remainder to his children then living in equal shares, the children of any predeceased child to take their parent's share, and if there be no child or descendant living at the time of the wife's death to his sister if then living, and if she be then deceased 'unto my heirs at law and next of kin, according to the provisions of the Statutes of the State of New York relating thereto.' Testator died in 1919 without issue. His heirs then were four sisters, one brother, and a nephew of a predeceased brother. When the widow died in 1954 his heirs determined as of that time were a nephew and a niece. The Appellate Division held that the heirs of testator must be determined as of the date of death of the life tenant, and that the ultimate remainder would be shared between the nephew and niece. The ultimate remainder was itself contingent and substitutional. This indicated an intention to postpone vesting until termination of the trust and that the class to share in the distribution of the principal were the heirs at the death of the life tenant. It was unlikely, the Court said, that after requiring survivorship as a condition of the prior remainders testator would intend his heirs to be determined without regard to survivorship, so that persons who predeceased the life tenant might nevertheless qualify as heirs. If that were done, the remainder would not vest in testator's heirs but in their heirs or legatees who need not be heirs or relatives of testator at all. The Court believes that the general testamentary scheme of testator, particularly the requirement of survivorship, showed that testator intended to benefit his own heirs rather than their residuary legatees (see Matter of Battell's Will, 286 N.Y. 97, 722, 35 N.E.2d 913, 37 N.E.2d 454; Matter of Wilson's Will, 11 Misc.2d 579, 48 N.Y.S.2d 835, modified 269 App.Div. 665, 53 N.Y.S.2d 14, affirmed 294 N.Y. 903, 63 N.E.2d 111). The language of the will supports this construction. After several specific bequests testator in paragraph 'Tenth' gave $500 to each of three named grandchildren 'as shall be living at the time of my death.' If testator intended in the Codicil to have his heirs determined as those living at the time of his death he could have used the same quoted...