Brown v. Brown

It appears by the agreed statement of facts contained in the submission herein that the plaintiff is the executrix of and residuary legatee under the will of her sister, Helen Brown, who-was one of the nine children of Stewart Brown, deceased. The defendants Melville Brown and William H. Brown are the executors of the last will and testament of Stewart Brown, and it appears that they have administered and distributed the estate of their testator, with

The plaintiff’s right depends altogether upon the construction to he given to the will of Stewart Brown. The one-ninth now claimed by the plaintiff is that to which her testatrix was entitled under the will of her father, provided her interest vested immediately upon his death; and we think there can be no question that it did so vest, and that she could dispose of the same by her will. The intention of Stewart Brown is unmistakably plain. It was to have his whole estate divided (less debts and funeral expenses) among his nine children, and, in case any one of these children should have predeceased him, the issue of such predeceased child to stand in his or her place. That is the only interpretation that can be given to that clause of the will which directs his executors as follows: “Thereupon to divide the aggregate into as many equal shares or parts as there shall be then living children, or the issue of deceased children of mine; such issue of each deceased child to represent one share of such division.” There is nothing in any provision of the will to indicate in any way that the vesting in interest of the shares should be postponed until after the mere administrative act of making a division should be performed by the executors; nor is there any interposition of a trust estate of such a character as to prevent such shares vesting at once in interest. Indeed, it is more than doubtful whether any valid trust is created by the will at all, although the gift in the second clause is in form “in trust” to convert, etc. In that second clause there is no gift of the rents, issues, and profits, and therefore, under the Revised Statutes, that clause, standing alone, would create merely a power in trust. At the end of the first paragraph of the fifth clause of the will there is an authority given to the executors, as such, “to collect the proceeds, rents, issues, and profits,” but nowhere in the will is there anything said as to what disposition shall be made of the rents, issues, and profits when collected. They are neither to be applied to the use of any person during life, nor to accumulate for any purpose, nor within any limit prescribed in the statute relating to the creation and division of estates. But whether there was or was not a trust, the whole duty to be performed by the executors was only to convert the estate into money or securities, and make a division. . The real effect of the contention of the defendants is that a trust was created to divide the property, and to commence at the time of the death of the testator, and that the shares could not vest until the division was made. That construction would render inalienable each share while the trust was being performed, and the entire income of the property would, therefore, accumulate until the division should be completed. Such a scheme would be manifestly illegal, and no such intention on the part of the testator is to be presumed.

It was held in Manice V. Manice, 43 N. Y. 303 , that when shares In seal or personal property are disposed of by a will, and such shares are

The plaintiff should have judgment upon the submission as asked for, with costs. All concur.