Ogden v. Ogden

This is an action for the construction of a will, and presents as the sole issue for determination the ever recurring ■question whether certain interests are vested or contingent. Briefly stated, the general scheme of the will is the creation of a trust, measured by two lives, during which the income of the estate, which is divided into a specified number of shares, is to be paid over to named beneficiaries, who are, after the termination of the trust, t'o receive the principal of the shares from which the income theretofore issued. The will is a very long document,. but only two clauses—the third and sixth—are up for construction in this action. There has been a previ- • ous construction (Butler v. Green, 65 Hun, 99 , 19 N. Y. Supp. 890 ), which involved the validity of certain bequests to charitable uses. That question is now eliminated.

“Third. * * * I order and direct that my said executors and trustees shall deem all the property devised and bequeathed to them * * ® as divided into twenty shares or portions, and my executors and trustees shall from time to time, and at least once in each year * * * apply and pay over such rents, issues, profits and income thereof * * * to the persons and in the proportions following.”

Then follow very precise provisions as to the distribution of the income; every beneficiary being designated by name, and the members of each family being included in a separate paragraph. Thus the wife receives four shares, or 20 per cent, of all the income; his sister Emily B. Wheeler, an allowance of 6 per cent., which is to cease on her death; the six children of Emily B. Wheeler, all of whom are named, 4 per cent, each, to be increased on the death of the mother by the addition of her share, so that the six shall receive 30 per cent, in the aggregate; the two children of his sister Eliza A. Butler, designated by name, 2j4 per cent., or a half share, each; the three children of his sister Caroline, by a first and second marriage, all specified with particularity, 2*4 per cent., or a half share, each; the three children of his brother Mahlon Ogden, given by name, 5 per cent., or one share, each, to be increased in favor of one of the nephews named after the testator to two shares in a certain contingency, not here necessary to enlarge upon—these shares, however, not to'be paid to the parents until the children are of age'; the two children of a deceased sister, indicated by name, 5 per cent., or one share, each. Finally there is a bequest of income to charitable use, which has been declared invalid so far as it issued from property in this state.

The principal is disposed of in the sixth clause of the will, reading as follows:

“From and after the decease of my said wife, Mariana O. Ogden, and my said brother-in-law, Edwin H. Sheldon, being the two Uves now in being by which the right of my said executors and trustees to collect and receive the rents, issues and profits of my estate are limited, I give, devise and bequeath all and singular the real and personal estate of which my said executors and trustees shall theretofore have received the rents, issues, and

profits, and all the rest, residue and remainder oí my property and estate, whatsoever and wheresoever, not herein otherwise specifically devised and ■bequeathed in, to and amongst the beneficiaries under the trusts created by this will, in such manner that the parties theretofore receiving the income only shall receive and become vested with the estate and property out of which such income arose in the same relative shares and proportions in which they are entitled to said income, viz.”

Then, in substantially the same paragraphing as under the third clause of'the will, disposing of the income, the principal is, with immaterial variation, given to the same beneficiaries. Thus, in default of a devise by his wife, to her heirs four shares. Then follows this subdivision:

“(2) To the children of my said sister Emily B. Wheeler, namely, William O. Wheeler, Julia H. Wheeler, Emily O. Wheeler, Eleanor Wheeler, Caroline E. Wheeler, and Laura Wheeler, being six persons in all, six shares, or threetentiis of my said estate, but these shares, if vested during the lifetime of their said mother, shall be charged with the payment of an annuity of five thousand dollars per annum to her.”

The other subdivisions of this paragraph it is not necessary further to particularize. They give to the named beneficiaries the exact share of the principal which under the similar subdivision of the third clause was the source of the income.

The occasion for construction arises through the death during the continuance of the trust term of two of the children of Emily B. Wheeler, namely, William O. and Julia FI.; the former having died January 27, 1900, leaving a will, the executrix of which claims the distributable moneys to which her testator would have been entitled if living, and the latter having died December 22, 1899, as the wife of Charles C. Tiffany, also leaving a will, the executors of which likewise claim the distributable share to which their testatrix would have been entitled if living.

The precise question before the court is, who is at present entitled to these distributable moneys? Did they vest in Julia H. Tiffany and William O. Wheeler in their lifetime, or was their interest contingent upon their surviving the trust term? In the former case they passed under their respective wills; in the latter, the testator died intestate as to these shares, which then vested in his heirs at law and next of kin.

Frequent rereadings of the entire will have only strengthened the conclusion derived from the first cursory perusal that each of the 16 named beneficiaries who survived the testator took absolutely vested interests both in principal and income, indefeasible, descendible, devisable, and alienable. Measured by the rule of intent, or by that of the statute defining what are vested or contingent interests, or by those subordinate rules of construction which are resorted to for the purpose of elucidating intent, the result is the same. I find in this will no uncertainty of person or event which would make the interests contingent, nor do I find provision for any condition subsequent to divest an otherwise vested interest.

It is peculiarly true, in seeking the proper construction of a will, that there are always reported opinions which may be made to yield language in support of any proposition argued. But where that most

I can discover but one unmistakable intent in this will. It is to dispose of his entire residuary estate—barring the attempted charitable bequests—to 16 or 17 named beneficiaries, who included all his then living nieces and nephews. There is no provision in favor of any afterborn children of his brothers and sisters; no gift to any one family group as a class; no conditions of survivorship; no limitation that division shall be made among those living at the time of distribution; no provision as to the disposition of shares of those who might die during the trust term, which, according to other portions of the will, it is quite apparent the testator expected to continue beyond 21 years. Every individual object of the testator’s bounty was living at the time he made his will, and all but one at the time of his death. They were of all ages; marriages, births, and deaths were to be expected and foreseen, in the natural course of events; and we should expect to find, in a will drawn with such elaborateness and care as this one, that, had the testator intended to confer merely defeasible interests, he would have provided for contingencies which it is not unreasonable to assume he must have foreseen, instead of permitting a possible successive intestacy in portions of his estate, the extent of which could not be foretold, and which might ultimately embrace the larger part of it. The testator certainly did not intend to die intestate as to any part of his property. Possible deaths among those whom he did not intend to take shares in the principal proportionate to their shares in the income were in his mind, for he provides for the contingency arising on the death of his sister Emily O. Wheeler, whose “allowance is to cease on her decease.” In no other case is a share so to determine. The inference, to me, at least, is irresistible that the others—especially the nephews and nieces—were to have his property in any event, under all circumstances and under all conditions, subject merely to the execution of the trust.

Constructions resulting in intestacy are sometimes forced upon the court, but I see no such compelling necessity in this case. It is perfectly clear that the testator did not have in mind a class to be ascertained when the shares of principal were to be payable. He was not contemplating changes in the character ,or number of persons who were the objects of his bounty. The gift at the termination of the trust term is to individuals named, and their precise shares are set out. The gift in each case was therefore distributive. Delafield v. Shipman, 103 N. Y. 463 , 9 N. E. 184 ; Shangle v. Hallock, 6 App. Div. 58 , 39 N. Y. Supp. 619 . The identity of these shares with those from which the income is to issue during the trust term is a

“Where the gift is to be severed instanter from the general estate, for the benefit of the legatee, and in the meantime the interest thereof is to be paid to him, that is indicative of the intent of the testator that the legatee shall, at all events, have the principal, and is to wait only for the payment until the day fixed.”

And in Dougherty v. Thompson—the case chiefly relied on by those arguing in favor of intestacy—Judge Landon says at page 484, 167 N. Y., and page 763, 60 N. E.:

“If the income intended for Stephen Jay Thompson had been the income of the share of the corpus intended for him, that would have been an indication of a vested gift of both.”

What the testator did, in effect, was this: The trustees were to hold_ a share or shares for the benefit of a named beneficiary, pay to hirn the income, and on the termination of the trust pay to him the principal, for he gives “in such manner that the parties theretofore receiving the income only shall receive and become vested with the estate and property out of which such income arose in the same relative shares and proportions in which they are entitled to said income.” Does not this import a present gift of income, and a present gift of the principal, with merely a deferred enjoyment in possession of the principal share? Especially so when we bear in mind that “a remainder is not to be considered as contingent in any case where, consistently with the intention of the testator, it may be construed as vested” (Hersee v. Simpson, 154 N. Y. 500 , 48 N. E. 891 ); that the law favors the vesting of estates; and that the presumption is that a testator intends that his dispositions shall take effect in enjoyment or interest at the date of his death (Nelson v. Russell, 135 N. Y. 137 , 31 N. E. 1008 ).

What is there in this will that injects the element of contingency? It is argued with considerable force that the, use of the term “vest” by the testator in several clauses shows the intention that vesting, in its technical legal sense, was to be deferred until the time specified. Thus it is argued that because the testator has provided in the sixth clause that, “from and after the termination of the measuring lives, he gives, devises, and bequeaths all his property in such manner that the parties theretofore receiving the income only shall receive and become vested with the estate,” .and because he has provided that the six Wheeler shares allotted in subdivision 2 of that clause, “if vested during the lifetime” of the mother, should be charged with the payment of an annuity to her, he has already expressed an intention to postpone vesting until the end of the trust term. Were these phrases considered standing alone, out of relation to all else in the will, a construction vesting the shares in interest only on the termination of the trust term might be justified. With nothing else to limit their meaning, they would have to be taken in their primary technical legal sense, and, as there would then be no other

Taking the entire document as a unit, however, we have a different situation. My view of the intent, as thereby indicated, I have already expressed. Beyond that, however, the testator has by the dispositions and directions he has made, created a situation which the statute requires us to construe as vesting the estates in interest at the time of his death. The estates we are considering are future estates. Real Property Law (Laws 1896, p. 564, c. 547, § 27); Personal Property Law (Laws 1897, p. 507, c. 417, § 2). “A future estate is either vested or contingent. It'is vested, when there is a person in being who would have an immediate right to the possession of the property on the determination of all the intermediate or precedent estates. It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain.” Real Property Law (Laws 1896, p. 564, c. 547, § 30); Personal Property Law, supra. Construed as of the time of the testator’s death, and under the mandate of the statute, it is clear that all the beneficiaries of income and principal would have had an immediate right to the possession of the property on the determination of the intermediate or precedent estates, or, to paraphrase the leading case of Moore v. Littel, 41 N. Y. 80 , that inasmuch as you can point to persons who, if the life estate would presently cease, would eo instanti et ipso facto have an immediate right of possession, the remainder is vested. It could, of course, be divested by the inclusion of a proper condition subsequent (Campbell v. Stokes, 142 N. Y. 23 , 36 N. E. 811 ; Dougherty v. Thompson, supra); but the will under consideration with its named beneficiaries, whose interests in principal and income are precisely set apart, with its absence of any gifts over, words of survivorship, gifts to a class, or issue or legal representatives (Clark v. Cammann, 160 N. Y. 328 , 54 N. E. 709 ), fails to yield anything on which to predicate the existence of such a condition. The testator has by clear language created a set of facts with regard to the estates given, which the statute says shall be held to be vested as of the time of his death. He has omitted any provision for subsequent defeasance. Under these circumstances, the actual facts rise superior to a technical construction sought to be injected into a particular word.

But even so far as this particular word is concerned, the whole scheme and tenor of the will would indicate that the testator used the word “vest,” in the phrases construed, not in the sense of vesting in interest, but in that of vesting in possession. This is certainly the meaning to be educed from' the four corners of the will. Without repeating the argument from intent, it is sufficient to say that the under-dying meaning and purpose of the testamentary gifts are to give to 16 or 17 persons, and to no others, a definite share of the estate, the possession of which is postponed for a definite period, but the income of which shall immediately accrue. In this connection it may be

I see no force in the argument that the testator could not have intended that a beneficiary dying during the trust term should have the testamentary disposition of his share, or that, in the absence of such disposition, it should descend to the beneficiary’s heirs and next of kin, rather than to those of the testator. In the first place, the argument is quite permissible that the testator intended just that, or, rather, that he gave the shares absolutely, and so was not concerned with the manner or time of disposition of the respective shares tó be made by the respective beneficiaries. The omission to provide for gifts over in the case of death during the trust term, or to bequeath in the alternative or on contingency to children, issue, or representatives, can well be construed into deliberate purpose. With beneficiaries of all ages, with deaths likely to occur in a trust term of length, it is not fair to assume that the omission was an oversight, rather than intentional. But even should it be said that the testator did not contemplate or expect a death or deaths during the trust term, and that he would have excluded from his bounty devisees or heirs of a beneficiary so dying, it cannot, therefore, be argued that the construction of the will adopted is contrary to the testator’s intent. That must be determined as of the time of the making of the will, not as of a subsequent time when certain events have happened which may or may not have been anticipated by him. “We should not impute to the words of a testator a meaning derived from a process of looking backwards.” Matter of Russell, 168 N. Y. 177 , 61 N. E. 168 . It is inadmissible to argue that because a testator, had he foreseen certain happenings, would have provided against them, he did by his intention, as expressed, in fact provide against them. That would not be giving controlling force to the rule of intent, but would be creating a new intent after the fact.

In Townshend v. Frommer, 125 N. Y. 469 , 26 N. E. 805 , which involved complicated questions under the law of trusts and powers, there was a trust following an earlier one for the benefit of the grantor during her life, to convey the lands to her children “living at her decease, and the surviving children of such of them as may then be dead.” The intention deduced by the court was to postpone the accruing of any future interests until the event (i. e., the death) happened. See Campbell v. Stokes, supra; Canfield v. Fallon, 26 Misc. Rep. 349 , 57 N. Y. Supp. 149 .

In Clark v. Cammann, 160 N. Y. 328 , 54 N. E. 710 , where, after a life estate in the wife, there was a life estate in a portion in a niece, and then a provision, as to that portion, “to pay over and divide the said principal sum * * * unto and among her children, share and share alike, and to their lawful representatives,” the Court of Appeals held that, had the testator stopped after the words “share and share alike,” the will would have been the same as in Matter of Brown, 154 N. Y. 313 , 48 N. E. 537 , and would have held that the legacies vested in the children, both of whom died before their mother—one, however, before the testator’s wife, who had the prior life estate in the whole property. The court held that the words “lawful representatives,” etc., negatived the claim that the estate vested in the sons; that the testator intended the estate to go to the issue of the sons of his niece; and that as no issue of these sons were in being at the death of the testator, and it was uncertain whether they would ever have issue, the remainder was contingent, for the reason that the persons to whom and the event upon which the estate was limited were uncertain. It was a proper case for the application of the rule that, futurity being annexed to the substance of the gift, the vesting was suspended.

It is unnecessary to distinguish further. To construe this will other than as vesting indefeasible interests in income and principal in the respective beneficiaries would, to my mind, be creating an intent for the testator contrary to that which, it seems to me, he has clearly expressed.

I am therefore of the opinion that the executors of the deceased children of Emily B. Wheeler are entitled to the distributable moneys which have heretofore been paid to their testator and testatrix, respectively. Submit decision accordingly. Costs to be paid out of the estate.

Judgment accordingly.