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

51 Misc. 162 Court N.Y. Sur. Ct. English

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p. 162
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.
(Surrogate’s Court, Suffolk County,
June, 1906.)

Headnote

Wills — Terms defining the nature and quality'of estates or interests — Future interests and vesting — Estates limited on failure of issue.
Where a bequest is made to a trustee to pay the income to a certain person for life and the fund is then bequeathed to another with the provision that, in case of the latter’s death “without leaving issue after the demise of said ” life beneficiary, the fund shall go to a third person, the first remainderman, upon the death of the life beneficiary, takes a vested remainder in fee, subject to be divested by his death without issue, in which event the fee will vest in the third person; and the trustee should continue to hold the fund, unless the first remainderman elects to take it upon giving security.
Proceeding upon the judicial settlement of the account of a trustee.
Turner, Eolston & Horan, for Farmers’' Loan and Trust Company, accounting trustee.
Pinney, Thayer & Van Slyke, for Israel Corse, Jr.
Philip H. Adee, for Katharine Corse Ingersoll.
•Stimson & Williams, for Edwin Thome, executor of will of Eliza L. Saunders, deceased.

The third clause of .the will of Israel Corse, who died in the month of July, 1885, provides as follows: “I do give and bequeath to the Farmers’ Loan and Trust Company of Hew 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,

p. 163
Milwaukee and St. Paul Railway 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 same 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.”

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 the event of the death of said Israel Corse, Jr.,” 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 contends 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 person in fee, followed by a

p. 164
gift over in the event of the death without issue of the first devisee or legatee, the death referred to will he presumed to be a 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 Eliza L. .Saunders,” so that the entire provision is made to read “ In the event of the death of said Israel Corse, Junior, without leaving issue after the demise of Eliza L. Saunders, then I do give and bequeath this trust fund to my grandniece Katharine Corse 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 Eliza L. Saunders.” Ho ■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 meaning, 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 j 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 tp is the death of the1 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.”

p. 165
Nothing could he 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 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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