Weller's Will, In re

• Court: New York Supreme Court
• Writing for the Court: EAGER
• Citation: Weller's Will, In re, 165 N.Y.S.2d 531, 7 Misc.2d 366 (N.Y. Sup. Ct. 1957)
• Decision Date: 31 May 1957
• Parties: In re WELLER'S WILL. In the Matter of the Final Judicial Settlement of the Account of the Proceedings of Joseph F. Weller as Substituted Testamentary Trustee under the Last Will and Testament of Joseph H. Weller, deceased.

Page 531

165 N.Y.S.2d 531

7 Misc.2d 366

In re WELLER'S WILL In the Matter of the Final Judicial Settlement of the Account of the Proceedings of Joseph F. Weller as Substituted Testamentary Trustee under the Last Will and Testament of Joseph H. Weller, deceased.

Supreme Court, Special Term, Orange County.

May 31, 1957.

Cassedy & Northrop, Newburgh (William L. Browning, Newburgh, of counsel), for petitioner.

Harris, Beach, Keating, Wilcox & Dale, Rochester, for respondents, Joseph F. Weller individually and Alfred E. Weller.

Gott, Hadaway & O'Hare, Goshen (Herbert F. O'Hare and Peter G. Striphas, Goshen, of counsel), for respondents, Robert B. Esselstyn and Leonard M. Hills.

Malcolm J. Carey, Newburgh, special guardian for Jay Tompkins, David Tompkins, Jane C. Tompkins, infant respondents.

EAGER, Justice.

There is here before this Court the matter of the final judicial settlement of the account of a substitute testamentary trustee, and their is required a determination as to the final disposition of the share of the testator's estate which was held in trust for the benefit of his daughter, Edith Esselstyn, for her life.

The testator's will was executed in 1883. He died in 1886 and his will was thereupon duly admitted to probate by the Surrogate's Court, New York County. The will bequeaths several legacies in stated sums, including a bequest for the life benefit of the testator's mother (par. 'Second'); bequests to each of two named sisters, with gift over to the 'surviving children' of each in the event any such sister did not survive (par. 'Third' and 'Fourth'); a bequest to 'such of the children' of a deceased sister as survive the testator (par. 'Fifth'); a bequest to 'Joseph, son of James H. Weller, if he survives me' (par. 'Sixth'); and a bequest to a nephew, son of testator's sister, Cecelia G. Ball, 'in case he survives me' (par. 'Seventh').

The will further makes certain provisions for the testator's wife. Then, the residue of the estate is disposed of by paragraph 'Ninth' of the will, reading as follows 'Ninth:--All the rest, residue and remainder of my estate of every kind and nature and wherever situated, I give, devise and bequeath to my Executors, hereinafter named, In Trust for the following purposes:--To safely invest the same and pay to my wife, the income of one-third of said estate, during her life, and after her death the principal sum shall be divided among my sons and invested for my daughters in the same manner as is hereinafter provided for their shares of my residuary estate.

'The remaining two-thirds of my residuary estate shall be equally divided among my children, the shares of my sons to be paid to them respectively as they arrive at the age of twenty-one years, and the income of the shares of my daughters respectively to be paid to them during their lives. And at the death of any of my daughters her share shall be divided equally among her legal representatives. During the minority of any of my said children, the income of its share of my estate or so much thereof as may be necessary may be applied to the support, maintenance and education of such child.'

The testator was survived by his wife and by his four children, Alfred Weller, Joseph F. Weller, Edith Esselstyn and Lillian Tompkins. Subsequently his wife died, and the residue set up in trust for her benefit was divided into four parts, with two of the parts paid to the sons and the other two parts invested for the daughters, as provided for in said paragraph 'Ninth'. In 1944, Lillian Tompkins died leaving four children, and the principal of the portion of the trust allotted to her as life beneficiary was paid over to her children in equal shares. Edith Esselstyn died August 25, 1955, without having had any children born unto her, but leaving surviving her a husband, Robert Esselstyn, and an adopted son, Leonard Hills. The question which now arises is, who takes the remainder of the Edith Esselstyn trust as 'her legal representatives'; or, is there an intestacy as to such remainder. The adopted son of the said life beneficiary claims the remainder, and the surviving husband, conceding that he may not take under the terms of the will, says the remainder goes to the said adopted son. The blood relatives of the testator, however, claim that the said adopted son may not take, contending that either the remainder passes to them as nearest blood kin of the said life beneficiary, or, in the alternative, that there is a partial intestacy.

Now, in the ordinary course, the duly qualified executors or administrators of a person take as his legal representatives upon his death, and the term 'legal representatives' when used in a will or a grant is to be accordingly construed unless the context of the instrument and the surrounding circumstances clearly indicate a different meaning. See, Rockland-Rockport Lime Co. v. Leary, 203 N.Y. 469, 482, 97 N.E 43, 47, L.R.A.1916F, 352; Griswold v. Sawyer, 125 N.Y. 411, 26 N.E. 464; Dwight v. Gibb, 145 App.Div. 223, 227, 129 N.Y.S. 961, 963; Matter of Worms' Estate, Sur., 159 N.Y.S. 732. However, the context of the will here before the Court indicates that the testator did not use this term in its ordinary sense. The direction that the 'share' of each daughter 'shall be divided equally' among her legal representatives leads to the conclusion that the testator, when he used the term 'legal representatives', did not have in mind her executors or administrators. Such a direction, that is, a direction to divide equally, calls for a final distribution of the share to the designated beneficiaries, and is inconsistent with the payment of the same to the daughter's executors and administrators as such.

In any event, it is clear that it is the duty of the Court to ascertain, so far as possible, and to give effect to the intent of the testator as disclosed by the will as a whole, with a consideration of the facts and circumstances existing when the will was drawn. Matter of Upjohn's Will, 304 N.Y. 366, 375, 107 N.E.2d 492, 495. And, it is important to note that it is to be presumed that the testator intended to dispose of his whole estate. Johnson v. Brasington, 156 N.Y. 181, 50 N.E. 859. This presumption is particularly strong where the property in question is part of the residuary estate. Matter of Birdsell's Will, 271 App.Div. 90, 95, 63 N.Y.S.2d 146, 150. We may assume that the testator intended that the provisions of his will were to be legally effective to dispose of his entire residuary estate so that there would not be an intestacy as to any part thereof. Schult v. Moll, 132 N.Y. 122, 30 N.E. 377; Matter of Hayes' Will, 263 N.Y. 219, 225, 188 N.E. 716, 718. Therefore, it is important to further note that there is in this will no gift over, and thus, we may assume that the testator intended that the 'share' of each daughter was to be fully and effectively disposed of on death of each by the provision that the 'share' was to be then divided 'among her legal representatives'. Consequently, we are to give the term 'legal representatives' a broad and liberal meaning; and the term is not to be construed to mean 'children' or 'issue,' or 'blood descendants', as contended for by the blood relatives of the testator. In the use of the term 'legal representatives' by this testator, it is concluded that he had in mind the persons who would legally succeed to the personal estate of the daughter on her death, that is, the persons who would then take under the statutes of distribution. Such a construction seems to be called for by a consideration of the will as a whole, and finds support in the authorities. See, Drake v. Pell, 3 Edw.Ch. 251 [Reprint 266, 286]; Griswold v. Sawyer, supra; Davidson v. Jones, 112 App.Div. 254, 98 N.Y.S. 265; Lee v. Dill, 39 Barb. 516; Matter of Ackerman's Estate, 137 Misc. 910, 244 N.Y.S. 632.

That the testator intended that the share of his said daughter Edith Esselstyn, be finally vested in her legal distributees at her death is particularly borne out by the wording of the will. It appears therefrom that, on the death of his wife, the testator intended to divide the residue of his estate equally between his four children. He calls the parts of his estate to be paid to his sons when they respectively arrive at age twenty-one as the 'shares of my sons', and he speaks of the estate to be held in trust for each of his daughters as their 'shares'. Then, he says that on the death of each daughter, her 'share' shall be divided among her legal representatives. Thus, it appears that it was the intent of the testator that an equal one-fourth part of the residue of his estate was to be allotted and set over for the benefit of each child, with no one child to receive more nor less, subject, however, to provisions for postponement of time of payment over of the principal of each 'share'. To construe the will in a way whereby the 'share' of a daughter would ultimately pass to other children of the testator or their issue, or to declare a partial intestacy having such effect, would result in such other children or their issue receiving more than their respective 'shares' of the testator's estate and tend to nullify his plan for equal distribution.

It is noted that the testator, in earlier provisions of his will, specifically used the term 'children' in connection with certain legacies, and, therefore, it is significant that the testator did not use the word 'children' or other expression limiting the class of beneficiaries who were to take a daughter's share on her death, that is, if he did so intend. The testator's daughters were mere children of tender years when he made his will, and he naturally would have in mind the possibility of one or both of them eventually dying without leaving children or descendants, so he used the broad term 'legal representatives'. Under all the circumstances, therefore, I find not particularly relevant nor helpful the decisions cited by cou...