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In re the Judicial Settlement of the Account of The Farmers' Loan & Trust Co.

119 A.D. 104 Court Second Department, Decision date 1907-04-19 English

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p. 104
In the Matter of the Judicial Settlement of the Account of The Farmers’ Loan and Trust Company, as Trustee under the Last Will and Testament of Israel Corse, Deceased, Respondent. Israel Corse, Appellant; Edwin Thorne, as Executor, etc., of Eliza L. Saunders, Deceased, and Katharine Corse Ingersoll, Respondents.
Second Department,
April 19, 1907.

Headnote

Will' — trust construed remainder contingent on death without - issue.
A will' -by which a testator places property in trust with the income to S. for lifé and at her death the principal" and accrued interest, if any to go to 0., but in the ' event of' the death of 0. without issue ‘ after the demise of ” said S. then the fund to-go to KC., must be construed to vest KC. with an estate in expectancy which will, ripen into an absolute estate in the event of C. dying .without issue. Although as a general rule where a devise in fee is followed by a gift over On' ■'the death without .issue of the first-devisee; the death referred" to will lie pre-.' sumed to be death in the lifetime of the testator; the .rule, has- no application when the will contains.language showing an intention to the contrary. .
Such interest as'accrues between the - last. payment to the- life tenant and -her death goes to her executor. •
Appeal . by Israel Corse (referred to in the will of Israel Corse, deceased, as Israel Corse, Jr.) from certain portions of a decree of the Surrogate’s ’Court of the county of Suffolk, entered in. said Surrogate’s' Court-' on the 17th day of May, 1906.
Decree of the Surrogate’s Court of Suffolk county; in so far as appealed from; affirmed, with costs, on the opinion of the surrogate.
George M. Pinneg, Jr.y and Aaron C. Thayer, for the appellant.
George M. Thompson, for the respondent Thorne, as executor.
Philip E. Connell. and Philip H. Adee, for the respondent Ingersoll.
Hirschberg P. J.; Woodward, Rich and Miller, J J., concurred.
The following is the opinion of the surrogate:'
Belford, Surrogate:
' The'3d clause of the "will of Israel Corse, who died- in the month of July, 1885, provides as follows; . ' ..
p. 105
“I do give and bequeath to the Farmers’ Loan'and Trust Company of New York City, in trust nevertheless, ten first mortgage bonds of- One Thousand Dollars each, and which are a lien on any division -or branch road of the Chicago, Milwaukee and St. Paul Bailway Company, bearing six per cent, interest, for the following ' named persons, uses and purposes, viz.: To pay said interest or income -thereof to my niece Eliza L. Saunders of Flushing, Long . Island, during the period of her life, and at her demise with respect to the principal of this fund and accrued interest thereon, if any,-. I do give and bequeath the samé to my namesake, Israel Corse, Junior, the son of the late Frederick Corse, of Flushing, Long Island. In event of the death of said Israel Corse, Junior, without leaving issue after- the demise of said Eliza L. Saunders, then I do give and bequeath this trust fund to my grandniece Katharine Corse ' Saunders.” . • ' t

Eliza L. Saunders, the life beneficiary, died on or about the 11th day of November, 1905, and the Farmers’ Loan and Trust Company, the trustee named in the will, now prays for a judicial settlement of its account, and for a construction of the clause of the will above recited. There is no dispute as to the -facts in the case. The sole issue -raised is as to the present disposition of the fund held by the trustee, the counsel for Israel Corse, Jr., contending that the words “ in event of the death of said Israel Corse, Junior,” refer to a death in the lifetime of the life beneficiary and that he, having survived Eliza L. Saunders, is now entitled to receive the principal of the trust, with accumulated interest thereon, free from any claim whatever on behalf of Katharine Corse Ingersoll; while ' counsel for Katharine Corse Ingersoll contend that the estate of Israel Corse, Jr., with respect to the principal of the trust is a conditional or defeasible fee, liable to be divested by his death hereafter, without issue surviving him; that. Katharine Corse Ingersoll now has a contingent interest, or estate in expectancy,' in the principal which will ripen into an absolute estate in the event of the death of Israel Corse, Jr., without issue.

Had the language of the will been “in the event of the death of Israel Corse, Jr., without leaving issue,” the case would present little or no difficulty, for under these circumstances the well-settled rule of construction that where there is a devise or .bequest to one

p. 106
person in fee followed by a gift over in the event of the death without issue of the first devisee or legatee, the death’ referred to will be presumed to be á death in the lifetime of the testator would apply. - ■ _

_ But this testator goes further.' He adds to this provision the very significant words “ after the demise of said Eliza L. Saunders,” so that the -entire provision is made to read, “ In event of the death of said Israel Corse, Junior, witliout'-leaving issue after the demise of said Eliza L. Saunders, then L do give and. bequeath this trust fund to my- grandniece,- Katharine - Corse Saunders (Ingersoll).” It is quite apparent- that testator intended to make some provision for Katharine Corse Ingersoll upon the happening of the death of Israel Corse, Jr., without issue. And the plain, obvious language of the will fixes the time at which this contingency may arise as “ after the demise of said Eliza L. Saunders.” No statutory rule of construction should be invoked when the language of the will itself is clear and. Unambiguous. It is far safer in the construction of testamentary instruments to give to words their plain, obvious and universally accepted ineaning, than to embark upon a sea of speculation as to the probable sense in which the testator used- the words. I am unable to understand how by any refinement of construction “ after ” the demise of Eliza L. Saunders can come to mean “ before ” her demise. And yet that is practically what I must.hold if- the contention that Israel-Corse, Jr.,, now takes an absolute estate in this fund is to prevail. The cases of Avery v. Everett ( 110 N. Y. 317 ) and Matter of Cramer (170 id. 271) seem to me to be controlling in this case. -■ In the latter case Judge Bartlett, after referring to the well-established rule of construction that “ where-there is a devise to one person in fee, and in case of his death. to another, the contingency referred to is- the death, of the first named devisee during the lifetime of the testator, and that if such devisee survives the testator he takes an absolute fee,” goes on to' say, “ This rule is, however, subject to several important exceptions, one of which is that it has no application if the will "contains language from which a contrary intention on the part- of the -testator can be ascertained.” .

■ Nothing could be clearer than the language in the case at bar. It certainly requires no strained effort of construction to interpret these words. He says a death without issue “ after the demise of

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said Eliza L. Saunders.” Why not construe this that testator meant what he said ? Why construe it to mean something which he did not say?. I, therefore, decide that Israel Corse, Jr., took, upon the testator’s death, a vested remainder in fee, limited upon the life estate of Eliza L. Saunders in the fund, subject, however, to be defeated by a condition subsequent, viz,, the death of Israel Corse, Jr., without issue at any time after the death of Eliza L. Saunders,-in • which event the substituted remainder given in that contingency to Katharine Corse Ingersoll will vest in possession.

The decree should direct that the Farmers’ Loan and Trust Company continue to hold the fund and pay the income therefrom to Israel Corse, Jr., or if Israel Corse, Jr., elects to take the fund he should be permitted to do so upon giving security in the shape of a bond, with sureties to be approved by the surrogate, conditioned for the payment of the fund to Katharine Corse Ingersoll upon' his death without issue. .

I further decide that such interest as accrued between the last payment of interest to Eliza L. Saunders'on July 1, 1905, and the date of her death, November 11, 1905, is properly payable to Edwin Thorne, the executor of her will.

Decreed accordingly.

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