In re the Judicial Settlement of the Account of Crossman

Majority

p. 841

In the Matter of the Judicial Settlement of the Account of Caroline E. Crossman and Samuel Burhans, as Executors of the Last Will and Testament of Henry Crossman, deceased.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

Will—Construction of—Vested remainders—Construction of words “AT AND AFTER” AND “FROM AND AFTER ” IN RELATION TO PRIOR ESTATE.

By a clause in the will, the testator directed the executor to keep invested the sum of $100,000, the income thereof to be applied to the use of his wife during her natural life, and that from and after her death to pay over the said sum to Henry C. Crossman, if he shall then have arrived at the age of twenty-eight years, but that if at her decease he shall not have arrived at the age of twenty-eight years, to keep the same invested, applying the income of the same to his use, and on his arrival at the said age to-pay him the principal, etc. Held, the words of the bequest only postpone the time of taking possession. “At and after,” “and from and after,” have, by a long and uniform course of authority, been so construed, and that the bequest constituted a vested remainder in Henry C. Crossman on his arrival at the age of twenty-eight.

Appeal from a final decree of the surrogate of Kings county, judicially settling and allowing the accounts of executors.

Daily & Bell, for app’lt, Elizabeth K. Westshal; James A. Hudson, for app’lt, Jane F. MacCarthy; Harold Vernon, for appl’ts, W. H. and GL W. Crossman, Jane A. Jackson and Harriet A. Hartman; James K. Steers, Jr., for respt’s, the executors, etc.

—The testator, by the third clause of his will, provided for a fund for the support and maintenance of his wife. The amount which he directed by this clause to be set apart for the purpose was the sum of $100,000.

It was to be kept invested by the executor, and the income thereof was directed to be applied to the use of his wife during her natural life. The clause then provided as follows:

p. 842

“And that from and after her death they pay over the said sum of $100,000 to her adopted son, Henry O. Cross-man, if he shall then have arrived at the age of twenty-eight years; but if, at the decease of my wife, he shall not have arrived at the age of twenty-eight years, then my executors are directed to keep the same invested until he shall have arrived at that age, and that they apply the interest or income to his use, and on his arrival at the age of twenty-eight years the said principal and accumulated interest (if any) is to be paid to him. But if my said adopted son shall die before he arrives at the age of twenty-eight years, and not leaving lawful issue him surviving, then the said sum of $100,000 shall be divided as follows: ”

Then follows a bequest over to other parties.

Henry C. Crossman died after he became twenty-eight, .and left no children, and the widow is still living.

The question is, therefore, under this clause, whether Henry C. Crossman took a vested ownership in the fund •subject to his mother’s rights for life when he became twenty-eight years old. The words of the bequest only postpone the time of taking possession. “At and after” and “ from,” and “ from and after the death of a person to whom a life estate is given in lands, have, by a long and •uniform course of authority, been so construed.” Livingston v. Greene, 52 N. Y., 118 .

An examination of the case cited by the court, and by the respondent in his points, will settle this conclusively.

Ackerman v. Gorton ( 67 N. Y., 63 ) holds to the same construction of similar words. The estate is vested by the words of the Revised Statutes. 1 R. S., 672.

Because after Henry C. Crossman became twenty-eight, Re could at once enter into the estate on the death of his mother. The rule is the same as to future interests in personal property. 1 R. S., 727.

This construction accords with the manifest intention of the testator. By the seventh clause of the will all the “rest, residue and remainder of my estate,” is given by "the testator, to Henry C. Crossman, “when he shall have arrived at the age of twenty-eight years.” The vesting of the remainder of the trust fund in Henry C. Crossman seems to be called for, not only bythe uniform meaning attached to the words used, but, also, because the will conveys that intent, taken as an entire instrument. The third clause does not present a case like those cited, to destroy the vest- • ing of the legacy.

The gift is not alone contained in the direction to pay_ at a future time. The words used indicate an absolute gift, with the time of payment only postponed.

p. 843

In Smith v. Edwards ( 88 N. Y., 92 ), the facts presented do not seem to apply to this case, The question was whether a clause in will, offended against the statute as to perpetuities, and the question of a vested remainder incidentally arising. The clause of the will in no sense resembles the third clause of that will.

In Delafield v. Shipman ( 103 N. Y., 463 ; 4 N. Y. State Rep., 247), the words were after the life estate ceased to divide the estate, “among testator’s children then living.” The court held that there was no vesting in the remainder, because the event determined, who were to be the beneficiaries.

In Hobson v. Hale ( 95 N. Y., 588 ), the direction in the will was to hold the entire estate until the death of the last of twelve annuitants, and then to divide the same equally * ‘ among my grandchildren. ”

This was held not to vest in the remaindermen designated, and to be against the < statute in respect to accumulation of interest. That by the peculiar words of the clause, the vesting was postponed until the death of the last annuitant.

We think, therefore, that the decree was right in holding a vested estate to exist in Henry C. Crossman, at his arrival* at the age of twenty-eight years.

There is, also, another question presented by the facts stated. The seventh clause gave the residue of the estate, principal and interest to Henry C. Crossman when twenty-eight. Before that date only an annuity was given him. There was a large accumulation of interest when he became of the age named in the will. The residuary clause carried with it all sums of money not legally given by the will. Floyd v. Carow, 88 N. Y., 560 .

The interest on the fund, belongs to the next eventual estate, and that was in Henry C. Crossman. IB. S., 726.

We think, therefore, that the decree should be affirmed, with costs.

Dykmann and Pratt, JJ., concur.