Stadlmair's Will, In re

• Decision Date: 20 March 1958
• Citation: 173 N.Y.S.2d 499,10 Misc.2d 726
• Parties: In re STADLMAIR'S WILL. Petition of MANUFACTURERS TRUST COMPANY, successor by merger to Brooklyn Trust Company, to render and settle a final account of its act and proceedings as surviving trustee of a trust created for the benefit of Lucy S. Fabre in and by the Will of Phebe J. Stadlmair, Deceased, and for a construction of said Will. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 499

173 N.Y.S.2d 499

10 Misc.2d 726

In re STADLMAIR'S WILL.

Petition of MANUFACTURERS TRUST COMPANY, successor by merger

to Brooklyn Trust Company, to render and settle a final

account of its act and proceedings as surviving trustee of a

trust created for the benefit of Lucy S. Fabre in and by the

Will of Phebe J. Stadlmair, Deceased, and for a construction

of said Will.

Surrogate's Court, Kings County.

March 20, 1958.

Cullen & Dykman, Brooklyn, for petitioners, Manufacturers trust co.

Joseph Tenner, New York City, Special Guardian for infants.

Good & Kent, Brooklyn, for Henry S. Fabre, a co-trustee and life beneficiary (respondent herein).

MAXIMILIAN MOSS, Surrogate.

In this accounting proceeding a construction of testatrix' will is sought as to the distribution of the remainder of a trust established under paragraph 'Sixth' of the will, the pertinent portion of which reads as follows:

'Upon the death of either my daughter Lucy S. Fabre or my granddaughter Edith J. Evans leaving issue her surviving, then and in the case I do give and bequeath unto such issue the parents' share, * * *.'

Testatrix died on November 12, 1925 and her will was duly admitted to provide by this Court on November 24, 1925. Testatrix' granddaughter Edith J. Evans died in 1936 and thereafter the surviving trustees obtained a judicial settlement of their account which disposed of the remainder interest held in trust for her benefit. On January 19, 1957, testatrix' daughter, Lucy S. Fabre surviving life beneficiary of the principal remaining in the hands of the trustees, died. At the date of her death, said Lucy S. Fabre was survived by her son Henry S. Fabre, a granddaughter Diane Fabre Bryant, the child of her said only son, and two great grandchildren who were the issue of said granddaughter Diane Fabre Bryant.

The issue presented for the determination of the Court is whether the gift to the 'issue' of Lucy S. Fabre is limited to her son Henry S. Fabre or is distributable among all of her surviving issue, namely, her son, her granddaughter and her great grandchildren and if so as to the shares of each in said remainder, and also whether the gift passes per stripes or per capita.

Under the Common Law Rule, the word 'issue', in the absence of other testamentary intent, included descendants in every degree, but such a rule yielded to a very faint glimpse of a different intention in the will (Matter of Good's Will, 304 N.Y. 110, 116, 106 N.E.2d 36, 39; Matter of Libby's Estate, 206 Misc. 723, 134 N.Y.S.2d 839; In re Agar's Will, Sur., 123 N.Y.S.2d 186; Matter of Seligmann's Estate, 203 Misc. 124, 117 N.Y.S.2d 755; Central Hanover Bank & Trust Co. v. Pell, 268 N.Y. 354, 197 N.E. 310; Matter of Farmers' Loan & Trust Co., 213 N.Y. 168, 107 N.E. 340, 2 A.L.R. 910; Matter of Maxwell's Estate, 261 App.Div. 1104, 27 N.Y.S.2d 162, affirmed 286 N.Y. 591, 35 N.E.2d 934; Matter of Burke's Will, 178 Misc. 684, 35 N.Y.S.2d 1011; Matter of Park's Will, 158 Misc. 866, 286 N.Y.S. 798; Vincent v. Newhouse, 83 N.Y. 505; Ferrer v. Pyne, 81 N.Y. 281). The contents of the will in question offer more than a faint glimpse of the testatrix' clear intention to have the remainder distributed per stirpes.

Furthermore, Section 47-a of Decedent Estate Law, effective April 30, 1921, provides in parts as follows:

§ 47-a. Issue to take per stirpes.

'If a person...