Vanderpoel v. Loew

• Citation: 19 N.E. 481,112 N.Y. 167
• Parties: VANDERPOEL v. LOEW et al.
• Decision Date: 15 January 1889
• Court: New York Court of Appeals

112 N.Y. 167

19 N.E. 481

VANDERPOEL

v.LOEW et al.¹

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, First department.

Action for the construction of a will, brought by George B. Vanderpoel against Frederick W. Loew and others. The material portions of the will are as follows:

‘ First. * * * I give, devise, and bequeath all the rest, residue, and remainder of my estate, of whatsoever nature or description the same may be, (whether real, personal, or mixed,) and wheresoever situate, of which I may die seized or possessed, unto my executors herein named; to have and to hold the same in trust to and for the uses and purposes hereinafter mentioned, viz.:

‘ Second. To set apart the sum of twenty thousand dollars, and invest the same in such productive real estate, or bonds and mortgages, or other first-class dividend-paying securities as they may jointly approve of, to collect and receive the rents, incomes, interest, dividends, and profits of the same, and apply the same, in their discretion, to the education and support of my granddaughter, Mary Elizabeth Vanderpoel, daughter of my deceased son, Benjamin W. Vanderpoel, until she shall have arrived at the age of twenty-one years; and after she shall have arrived at said age they shall pay over to her the said rents, income, interest, and profits of the said sum of twenty thousand dollars for and during the term of her natural life, upon her own individual receipt, free from the control or interference of any husband she may at any time have,-such payments to be made at such stated and convenient times as may seem to them meet and proper.

‘ Third. To invest all the rest, residue, and remainder of my real and personal estate in such productive real estate, or bonds and mortgages, or other first-class dividend-paying securities, as they may jointly think fit and proper, and a majority of my children hereinafter mentioned may approve of; to collect and receive the rents, income, interest, dividends, and profits of the same, and pay over one-fourth part thereof to my daughter Mary Elizabeth Vanderpoel, one-fourth part thereof to my daughter Julie Vanderpoel Loew, one-fourth part thereof to my son George B. Vanderpoel, and the remaining one-fourth part thereof to my son Waldron B. Vanderpoel, such payments to be made quarter yearly, or at such other stated and convenient times as may be agreed on between my executors and my children above mentioned, and to continue during the term of the respective lives of my said children.

‘ Fourth. Whenever any one of my said children shall depart this life, leaving lawful issue him or her surviving, then my said executors shall set apart one undivided one-fourth part of all the rest, residue, and remainder of my estate so invested for the benefit of my children as above mentioned; or, in case my said grandchild shall depart this life leaving lawful issue her surviving, then they shall take the said sum of twenty thousand dollars so set apart for her benefit as above set forth, and shall invest the same in the way and manner above mentioned, for the use and benefit of the issue of such deceased child or grandchild, and shall use and employ the rents, issues, profits, and income thereof, for its or their maintenance and education; or, in case it or they shall be of a sufficient age to justify the same, then to pay over such rents, issues, and profits to it or them, until it or they shall respectively arrive at the age of thirty years, when the whole of the principal so set apart as above mentioned, or such part thereof as they may be respectively entitled to (if the issue shall consist of more than one) shall be paid over to it or them; to have and to hold the same to it or to them, to its or their sole use, benefit, and behoof, forever. In the event that any one of my said children, or my said grandchild, shall die without leaving any lawful issue him or her surviving, then the income and profits of my estate to which he or she would have been entitled if living shall be divided between my surviving children above mentioned, and the lawful issue of any deceased child, share and share alike; such issue to take the share to which the parent, if living, would have been entitled, and the principal shall form a part of the common fund to be divided among the lawful issue of my said children whenever such issue shall arrive at the age of thirty years, as above mentioned.’

Both the special and general terms decided in favor of the will. Plaintiff and the granddaughter Mary E. Vanderpoel appeal.

A. P & W Man, for plaintiff, appellant.

A. G. Vanderpoel, for W. B. Vanderpoel, appellant.

Evarts, Choate & Beaman, for Frederick W. Loew and others, respondents.

A. T. Compton, for guardians ad litem, respondents.

FINCH, J.

The pivotal question in this case is the inquiry whether the testator meant to create one trust, enveloping the interests of all the beneficiaries, and holding them in its grasp until a final or ultimate division, or whether he intended to constitute five separate trusts, each to be measured by its own terms, and having its own several purpose to accomplish. It is scarcely denied that upon the first construction the limitations will prove too remote, are result in a failure of the trust, and an intestacy as to the bulk of the estate; and so we are in duty bound to reject that construction, if any fair and reasonable interpretation of the testator's language enables us to save his dispositions and give his will effect.

There are some provisions of the will which tend to establish a purpose to create a single trust, and to suspend the power of alienation beyond the prescribed lives in being. These are that the whole rest and residue of the estate is given to the executors in trust, without any expressed separation or division; that such residue was to be invested and kept invested with the assent of a majority of the children; that it was to remain actually undivided until the period of final distribution; that merely income was specifically given pending the arrival of that period; and that the shares of children dying without issue go into what is denominated the ‘common fund,’ remaining presumably in the possession and control of the trustees until the ultimate remaindermen, respectively, reach the age of 30 years. It is undeniable that these difficulties, which have been pressed upon us with great force and ability, deserve careful study and consideration, and are not to be lightly dismissed, and yet it seems to me possible to hold them not insuperable.

We are struck at the outset with a separation and division which the testator did make, and the reason and manner of which reflect some light upon the dispositions which follow. His estate amounted to about $600,000, a very small part of which was personalty, and he left four children, and one grandchild, who was the daughter of his deceased son, Benjamin. By the will the whole residue of the property, after payment of debts and expenses, and the cost of a suitable monument, is devised and bequeathed to the executors in trust. That is done by the first paragraph of the dispositions directed. The second requires the trustees to ‘set apart’ and invest $20,000 for the benefit of the granddaughter, Mary Elizabeth, applying the income to her support and education during her minority, and thereafter paying the income to her during her natural life. It is plain that this trust was meant to be a separate and several one for the benefit of the granddaughter alone, and shows that the general devise of the whole net estate to the executors was not intended to prevent a separation of interests or conclusively indicate their union. Then follows the trust for the benefit of the four children. The direction is to invest the residue remaining after setting apart the fund for the granddaughter in such securities as a majority of the children may approve, and pay to each of the four onequarter of the income annually; such payments to continue, the testator adds, ‘during the terms of the respective lives of my said children.’ The word ‘respective’ indicates that the legacies of income are to be treated distributively, and that each child takes his or her share during his or her life. The principal is not actually separated, because the interests in its accruing income are equal. If they had been unequal, what the testator did in the case of his granddaughter, where inequality existed, he would also naturally have done in the case of his children, but did not do so because their equality of interest admitted of one common form of expression, and made an actual separation of the principal needless, while yet the interests dependent upon it were several, and ran each for a separate and distinct period. That explains the provision as to investments, and the control over them of a majority of the children. The fund was to be kept together without actual division while it served to produce the four shares of income, and the discretion of the executors was put under the watch of the beneficiaries for that reason, but their shares were meant to be separate and distinct, and the trust as to each share was terminable at its own date; so that the trust, as a whole, ran for four different periods, and in four different divisions or sections. Pausing at this stage of the will, and without noting the disposition of the remainders, it seems just and reasonable to say that the testator contemplated, not one trust running for four lives, but four trusts running each for a single life.

We come now to the limitations over of the remainders. By the fourth paragraph of the will provision is made for a specified contingency, and that is, in the words of the testator, ‘when any one of my said children shall depart this life leaving lawful issue,’ and ‘in case my said grandchild shall depart...