In re the Estate of Bender — 44 Misc. 79

Majority

p. 79

Matter of the Estate of Fredericka Bender, Deceased.

(Surrogate’s Court, New York County,

June, 1904.)

Headnote

Trust — “ Lawful children ” — When “ children ” is equivalent to “ descendants.”

A testatrix, after creating a trust in real estate to pay the income equally to her five children for life, during the lives of two of them, Louisa and Henry, with remainder in one-fifth of the corpus to the heirs of each, directed that if a child died during the trust his or her share of the income should pass to his or her surviving “ lawful children ”. Henry died after the testatrix and left a child Christina, who also died and left children.

Held, that the grandchildren of Henry were entitled during the trust to one-fiftli of the income.

That, treating the word “ children ” in its primary sense, Christina, on Henry’s death, became owner of one-fifth of the net income for the residue of the trust period, which income on her death passed to her children as her heirs and that after her death, if the gift of income was limited to her life, the share of income, not being disposed of by the will, passed to the persons presumptively entitled to the next eventual estate, her children, who are the heirs of Henry and as such entitled to one-fifth of the corpus at the end of the term.

That the testatrix did not intend to die intestate as to any part of her estate and also intended that the descendants of Henry should stand in his place during and at the end of the trust term and that, if necessary to effectuate this intention, the word “ children ” should be read as meaning “ descendants.”

p. 80

Proceedings upon the judicial settlement of the accounts' of a trustee. Objections to accounts.

Joseph F. Stier, for trustee.

Robert L. Wensley, for guardian.

H. Aplington, for contestants.

The trust created by the testatrix was limited as to its continuance to the lives of Louisa Deffaa and Henry Bender, two of her five children. So long as they, or either of them, lived, the trustees were to “ divide and pay over ” the residue of the rents after the payment of certain specified charges and expenses, to her five children, of whom Henry was one. Henry died August 13, 1899, leaving a daughter, Christina Buhler, him surviving. The sentence in the trust provision of the will then applicable was: “ In case either of my said children shall die during the continuance of this trust, then I give his or her share of the net income of my estate to his or her lawful children, him or her surviving.” Treating the word “ children ” in its primary sense Christina Buhler became, on the death of ‘her father, Henry Bender, the owner of one-fifth of the net income of the trust property, to have and to hold the same for the residue of the trust period, since no other limitation is placed on her right of enjoyment, and on her death this interest passed to her children as her heirs-at-law, the entire trust property being real estate. Still treating the word " children ” in its primary sense, and reading into the will an intent not expressed, to limit the gift of income to the child of Henry Bender for her life only, the share of Henry Bender in the trust income, for the period after the death of his daughter until the expiration of the trust term, is undisposed of by the will. If this is so, such income belongs to the persons presumptively entitled to the next eventual estate (Real Property Law, § 53; 1 Rev. Stat. 126, § 40). These persons are the children of Christina Buhler, who' are the heirs of Henry Bender and are, as such, by

p. 81

the terms of the will, to' take one-fifth of the corpus of the trust property at the end of the trust term. The intention of the testatrix was to make a complete disposition of her estate, and not to be intestate as to any part of it; she also intended that the descendants of her son Henry should stand in his place and take his interest in her estate, both during and at the end of the trust term. If necessary to effectuate this intention the word “ children ” should be read as meaning “ descendants.” Each of these lines of reasoning will lead to the same result, and will give to the infant grandchildren of Henry Bender the right to one-fifth of the income. In an accounting for income, since the death of Mrs. Buhler, a decree was made, without objection, affirming this right. Without resting this decision on the binding character of that decree on the precise issue now raised, I will follow the principle on which it rests, and will overrule the objection to the items of payment to the Buhler infants, contained in the account.

The will contains an express direction for the payment of commissions and expenses for collecting rents, and the objections to the items of payment for that purpose are overruled. - - - - .

Decreed accordingly.