Kurst v. Paton — 4 Dem. Sur. 130

Majority

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New York County.

Hon. D. G. ROLLINS, Surrogate.

July, 1885.

Kurst v. Paton. In the matter of the judicial settlement of the account of David Paton, as trustee under the will of John Kurst, deceased.

Headnote

Testator’s will, after bequeathing a life interest in the residue of his estate to his wife for her maintenance, and the maintenance and education of their children until they became self-supporting, directed that, after the widow’s death, all such property as then remained be disposed of, and the proceeds be divided “ equally among the children I may then have, or those who may be legally entitled thereto.” When the will was executed, testator had three children, of whom one died before him without issue, another before testator’s widow, leaving a widow and children, and the third, J., survived both his parents.—

Held, that J., as the sole survivor of his mother, was entitled to the exclusive benefit of the ultimate disposition made by the will, the intent of the italicized words being that, in the event of the death of all the children in the widow’s lifetime, and only in such contingency, the property should eventually pass under the statute providing for distribution in cases of intestacy.

The word, “children,” occurring in a will which furnished no evidence of a design to adopt a special and more extended meaning,—

Held, to apply only to offspring in the first degree, and to exclude grandchildren, in accordance with the doctrine asserted in Kirk v. Cashman, 3 Hem., 242.

Upon the judicial settlement of the account of David Patón, as trustee under decedent’s will, John B. Kurst, a son of decedent, claimed the entire residue, which was ready for distribution to the persons entitled. Further facts appear in the opinion.

Jesse K. Furlong, for John B. Kurst.

Van Duzer & Taylor, for trustee.

Upon the accounting of this testator’s trustee, a question has. arisen as to the construction of the ninth article of his will. The third article gives his widow a life interest in the residue, in trust for her own support, for the support, education and maintenance of their child, Julia, until she shall be able to provide for herself, and also for the support, education and maintenance of any other children that may be afterwards born to them, until such other children shall also become self-supporting. The fifth article directs that, in the event of the death of the widow, before the time shall have arrived when the daughter Julia, and such other child or children as may thereafter be born, shall be able to provide for themselves, the executor shall make provision for such daughter, and such other child or children, until they shall respectively cease to require it. Clause sixth orders the investment of the net income of the estate in the event of the decease of the widow before the youngest child shall arrive at the age of twenty-one. The seventh and eighth clauses are for present purposes unimportant.

The ninth is as follows : “ I order and direct that, after the decease of my said wife, and after my youngest child shall arrive at the age of twenty-one years, my executor, or such person as may then legally represent my said estate and the interest of my said children, shall dispose of all such property as may then remain of my estate,.....and, after first deducting all necessary expenses, divide the proceeds thereof, together with all other property belonging to my said estate equally among the children

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I may then have, or those who may he legally entitled thereto.”

At the time of the execution of the will, in 1858, the testator had three living children, John, Charles and Julia. Of these, John alone is living. Julia, the youngest, died in her father’s lifetime, and without issue. Charles outlived the testator, but pre-deceased his mother, leaving a wife and two children, who still survive, and are represented by counsel in this proceeding. John claims the whole of the residue now ready for distribution. The widow of Charles claims such share as she would have been entitled to receive if her husband had outlived his mother, and, without receiving his share in the estate, had died intestate. The children of Charles contend that, under the ninth clause of the will, the proceeds of the residue should be divided either into two equal parts, one half for their uncle John, and the other half for themselves, or into three equal parts, whereof he should be accorded one, and they the two remaining.

It seems to me that the testator, in providing for distribution “ equally among the children I may then have, or those who may be legally entitled thereto,” intended that such of his children as might outlive his widow should enjoy the exclusive benefits of this provision, and did not intend that the words, “ or those who may be legally entitled thereto,” should become operative save m the event of the death of all such children in the lifetime of their mother. In that contingency, and in that contingency only, his purpose as here expressed, was that the property disposed, of by the ninth clause should be divided among those persons

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who, under the laws of this State, would be entitled thereto in the absence of any testamentary direction for its disposition. There is nothing in this will to indicate that the word “ children ” is used in any other sense than in that which the law always ascribes to it in the absence of evidence that it was intended to have a special and more extended meaning. I hold, therefore, that that word does not include the children of the testator’s son, Charles, and' that his son John is entitled to the whole of the proceeds here in dispute (Kirk v. Cashman, 3 Bern., 242, and cases cited).