Rudd v. Cornell

• Decision Date: 13 May 1902
• Citation: 171 N.Y. 114
• Court: New York Court of Appeals Court of Appeals
• Parties: JANET RUDD et al., as Executrices and Trustees under the Will of GEORGE RUDD, Deceased, Respondents, v. ANNIE E. CORNELL, Individually, and as Administratrix of GENEVIEVE M. RUDD, Deceased, Appellant, and JANET RUDD et al., Respondents.

171 N.Y. 114

63 N.E. 823

RUDD et al.

v.CORNELL.

Court of Appeals of New York.

May 13, 1902.

Appeal from supreme court, appellate division, First department.

Action by Janet Rudd an others, executrices and trustees under the will of George Rudd, against Annie E. Cornell and others. From a judgment of the appellate division (68 N. Y. Supp. 757), affirming a judgment of plaintiffs, Annie E. Cornell appeals. Affirmed.

The action was brought for an accounting by the plaintiffs as trustees under the last will and testament of George Rudd, deceased. It also involved the construction of the third clause of the testator's will. The appellant, individually and as administratrix of the estate of Genevieve M. Rudd, deceased, appeared and answered, alleging that her intestate was entitled to a portion of both the income and corpus of the estate of the plaintiffs' testator, and that upon her death the appellant, her mother, and only next of kin and heir at law, became entitled to the share of her deceased daughter. She also alleged that, by two previous judgments between the parties, the will of the testator was construed to the effect that Genevieve was entitled to a share in the income of the trust estate, and had a remainder in fee in the trust property, and that such construction was res adjudicata, and a bar to any different construction of the will.

George Rudd died in the city of New York September 14, 1884, leaving a last will and testament dated August 27, 1870, and a codicil executed August 28, 1880. He left, him surviving, his widow, Janet Rudd, and five children, Eliza M. Rudd, George Rudd, Jr., Mary F. Rudd, Marvin W. Rudd, and Althea S. Rudd. By his will the testator provided for the payment of his debts and funeral expenses, gave his wife all his household furniture, printed books and plate, and then followed the third paragraph of his will:

‘Third. I do give, devise, and bequeath to my executors hereinafter named, the survivors and survivor of them, all the rest, residue, and remainder of my estate, real and personal, wheresoever and whatsoever, in trust and for the purposes following: That they invest my personal property on bonds secured by mortgages on real estate, or stocks of a permanent character, and that they rent my real estate, and that during the lives of my two children, Marvin W. Rudd and Allie Rudd, and the survivor of them, that they apply one-third of the net rents and income of my said estate to the use of my said dear wife, Janet, for and during the term of her natural life, if she shall so long live, and that they apply the residue of said rents and income, and the whole thereof, after the decease of my wife, to the use of my children, viz., Eliza Moore Rudd, George Rudd, Mary Frances Rudd, Marvin W. Rudd, and Allie Rudd, in equal shares; and in case either of them shall die before the death of the survivor of my said two children, Marvin and Allie, leaving lawful issue surviving, then the share of the one so dying to be paid over to such issue; if one, solely; if more than one, jointly and equally; but, if the one so dying leave no lawful issue surviving, then such share to be paid to the survivors; and upon the death of the survivor of my said two children, Marvin and Allie, then upon the further trust that my said executors, or the survivor of them, do divide my estate, and pay one-third thereof to my wife, if she shall then be living, and one share of the residue thereof (and of the whole if my said wife shall have deceased) to each one of my children who shall then be living, and to the issue of such of them who shall have died leaving lawful issue him or her surviving; such issue to take the share of the parent; if one, solely; if more than one, jointly and equally: provided, that if, in the judgment of my executors, it shall be most to the interest of my estate that my unimproved real estate shall be sold before the division herein directed, or for the purposes of division, then I do authorize and empower my said executors to sell and convey the same to the purchasers or purchaser thereof, and until the said division that they invest the proceeds of sale and pay the income thereof as hereinbefore directed: and provided, further, that in case of any damage or destruction to any of my buildings by fire, and the amounts of the policies of insurance should not be sufficient to repair or rebuild the same, my executors are authorized and requested to repair or rebuild the same, as the case may be, and to apply any moneys from my estate necessary for the purpose. The provisions herein made for my said wife are to be accepted by her in lieu and bar of dower and other claim on my estate. And I do nominate and appoint my said dear wife the guardian of the persons and estates of my minor children during their minorities, and I authorize the share of the income of my said estate to which my minor children are entitled shall be, during their minorities, paid to her, and that her receipt therefor shall be a discharge to my executors; and I do nominate and appoint my said wife, Janet, executrix, and my brother Joseph Rudd and my brother-in-law John T. Wait executors of this, my last will and testament.’

By his codicil he revoked the appointment of his brother and brother-in-law as such executors, and appointed his wife and daughters Eliza and Mary as executrices thereof.

The will was probated both as a will of real and personal property, and the executrices duly qualified as such. Marvin, one of the persons for the period of whose lives the trust was created, died in March, 1888, leaving his wife, the defendant Annie E. Cornell, and his daughter, Genevieve, his only next of kin and heir at law. Genevieve died in November, 1897, leaving the appellant her sole next of kin and heir at law. Eliza died in August, 1892; Mary, in January, 1894; and neither left issue. The testator's widow, his son George, and daughter Althea are still living. George had a wife and one child at the death of his father, and at the commencement of this action he had four other children, who now survive, and are the four infant defendants herein. The trust created by the will has not yet terminated, the period for distribution being postponed until the death of Althea.David B. Hill and John E. Parsons, for appellant.

Austen G. Fox and Robert Thorne, for respondents.

MARTIN, J. (after stating the facts).

This controversy relates solely to the proper disposition of the portion of the estate of George Rudd, deceased, to which, under his will, Genevieve M. Rudd would have been entitled if she were still living, and survived the trust term created thereby. The determination of this question involves the construction of the third paragraph of the testator's will. He thereby gave all his residuary estate to his executors in trust to invest the personal property and to rent the real estate, and then, in effect, provided that during the life of the survivor of his two children, Marvin and Allie, his executors should apply one-third of the rents and income to the use of his wife during her life, apply the residue to the use of his five children, Eliza, George, Mary, Marvin, and Allie, in equal shares, and if, before the death of the survivor of Marvin and Allie, any child should die, leaving issue, then the share of the one so dying was to be paid to such issue; but, if no issue survived, then shch share was to be paid to the surviving children of the testator. The devise and bequest to the executors was also upon the further trust that upon the death of the survivor of his two children named, the executors should divide the estate, and pay one-third to his wife, if living, and one share of the residue thereof to each one of his children who should then be living, and to the issue of any who should have died, leaving lawful issue; such issue to take the share of its deceased parent. If the wife died before the death of such survivor, then upon the termination of the trust the whole trust estate was to be divided between his children and grandchildren; the latter to take the share of the parent; if one, solely; if more, jointly and equally. As the trust term was measured by the lives of his youngest children, it is manifest that the testator intended to suspend the vesting or devolution of the title to his property as long as possible, and not offend against the statute. That he intended his wife should have one-third of the income during her life if the trust should so long continue, and, if not, that she should then receive one-third of the principal of the trust estate, there is no doubt. It is quite as obvious that it was his intention at the termination of the trust that two-thirds of the trust estate, if his wife were living, and the whole if she were dead, should be divided between his children who were living at that time, subject only to the provision as to the previous death of a child leaving lawful issue. Thus the only disputed question is whether, in case of the death of one of his children, leaving issue, it was the intent of the testator that such grandchild should thak the same interest in his estate that its parent, if living, would have taken. That the testator intended that each of his children should take only a contingent or defeasible estate or interest in the trust property, which would not vest until the end of the trust period, or, if vested, would be devested by the death of such child during the continuance of the trust, cannot be successfully denied. But it is claimed that the third paragraph of the will indicates a purpose to confer upon the grandchildren an estate greater and superior to that given to the children. The contention is that there is no express provision in the will limiting the ownership or disposition of the share of a grandchild to such as should be living at the termination of the trust, and hence the title of Genevieve to the share of her father at once vested,...