In re Brown — 59 N.Y.S. 844

Majority

p. 844

(28 Misc. Rep. 273.)

In re BROWN et al.

(Surrogate’s Court, New York County.

June, 1899.)

Headnote

Wills—Vested Remainder—Words Creating.

Decedent gave his entire estate to his executors, in trust to pay his wife the income during her life or widowhood. Then follows the clause: “I further direct that, in case of her death, or in case she should marry, then I direct my said executors hereinafter named to divide my said estate, real and personal, into five equal parts or shares, and that the same he paid over to my children, as follows: To my daughter A., one-fifth part; to my son J., one-fifth part; to my daughter C., one-fifth part; to my

p. 845

daughter M., one-fifth part; to my son R., one-fifth part,—my intention being to give each of my said children share and share alike.” Held, that the gifts to the five children vested at the death of decedent.

Proceedings on the settlement of the account of James Brown and William H. Byrnes, as trustees of John Pauley, deceased. Decree rendered.

Frederick G-. Smedley, for trustees.

J. Noble Emley, for objectors.

This is one of the undecided matters of Judge Arnold. Decedent gave his entire estate to his executors, in trust to pay his wife the income thereof during her life or during her widowhood. Then follows this clause:

“I further direct that in case of her death, or in case she should marry, then I direct my said executors hereinafter named to divide ray said estate, real and personal, into five equal parts or shares, and that the same be paid over to my children, as follows: To my daughter Ann Jane, one-fifth part; to my son John Joseph, one-fifth part; to my daughter Mary Cecelia, one-fifth part; to my daughter Margaret, one-fifth part; to my son Robert Lawrence, one-fifth part,—my intention being to give each of my said children share and share alike.”

The wife and all of the children survived the decedent. Three of the children predeceased the wife. The question now arises as to whether the above provision gave the five beneficiaries vested remainders, or whether the gifts were only to take effect upon the death or remarriage of testator’s widow. Naturally, in the latter event, the entire estate would belong to the two children who survived their mother. It is contended that the words used in the will bring this case under the rule which holds that, where a gift consists wholly in a direction to make a division at some future time, there can be no vesting until such time arrives. Delafield v. Shipman, 103 N. Y. 467 , 9 N. E. 184 . This rule was thoroughly analyzed in the recent case of In re Elliott’s Estate, 27 Misc. Rep. 258 , 58 N. Y. Supp. 603 . It was there pointed out that this canon of construction was not a hard and fast one, but that it readily yielded to the intention of the testator as gathered from the will, and that in the cases where a future division is directed, coupled with words of present gift, the latter govern, and the gift is construed as being immediately vested. It was also shown that, where the courts have held that the vesting is postponed, there is not only an absence of language importing an immediate gift, but other circumstances are usually present which are largely determinative in bringing about the decision. Indeed, the courts have gone so far as to refuse to apply the rule in question, even where the direction to divide is made most imperative. Thus, in the case of In re Hedger’s Estate (Sur.) 6 N. Y. Supp. 769 , affirmed (Sup.) 9 N. Y. Supp. 347 , the testator, after creating a life estate in his wife, gave the remainder to certain named beneficiaries, and directed that “such devises and bequests are to take effect, and such division of my estate is to be had, after the decease of my said wife.” It was held that the intention here was well defined, that the gifts were certain as to quan

p. 846

tity and as to the objects of the testator’s bounty, and that the remainders were, therefore, vested, and not contingent. See, also, Ross v. Roberts, 2 Hun, 90 , affirmed 63 N. Y. 652 . It will be observed that in the present case the gifts are not made to a mere class,—a disposition which might be indicative of an intention to give benefits only to those who belonged to it at the time distribution is directed. In re Baer, 147 N. Y. 348 , 41 N. E. 702 . The beneficiaries are distinctly named, thus showing that the testator’s scheme was to fix at once the persons who were to take, and not to leave the matter to future contingencies. Carr v. Smith, 25 App. Div. 214 , 49 N. Y. Supp. 351 . The decisive words which, to my mind, make it evident that the decedent intended to create vested remainders, are contained in the declaration of intention, which conclude the clause above quoted, namely, “it being my intention to- give each of my said children share and share alike.” These Avords are equivalent to the creation of a gift by present words. They are as effective as if the decedent had said in so many words, “I do hereby give to each of my said children an equal share in my estate.” I am asked to' disregard this declaration of testator, as being merely iterative of what precedes it. It seems to me that, so far from being colorless repetition, these words shed the clearest light on the question at issue. They give marked emphasis to the purpose of the testator (In re Brown, 154 N. Y. 313 , 322, 326, 48 N. E. 537 ), and in the present case show that an immediate gift was intended. This being so, I hold that the gifts to the five children above named vested at the death of the decedent. The decree should provide for distribution accordingly.

Decreed accordingly.

Cases cited

Miller v. Irish 63 N. Y. 652 N.Y. 1876-01-18 p. 846
Baer v. Hendricks 147 N. Y. 348 N.Y. 1895-10-29 p. 846
Carr v. Smith 25 App. Div. 214 N.Y. App. Div. 1898-01-21 p. 846
In re the Accounting of Brown 154 N. Y. 313 N.Y. 1897-11-23 at 322, 326, 48 p. 846