In re the Judicial Settlement of the Accounts of Leinkauf

Majority

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In the Matter of the Judicial Settlement of the Accounts of Herman J. Leinkauf et al. as Executors of the Will of Donah Leinkauf, Deceased.

(Surrogate's Court, Westchester County,

Filed September, 1888.)

Headnote

Will—Constuction of.

The deceased, by her will, directed that the residue of her estate be divided into seven equal shares for her then seven children, of whom three were sons and four daughters, all of whom were minors with one exception. Each son’s share she directed to be invested in the executors’ names, the income arising therefrom to be paid to the one son who was of age until he arrived at the age of thirty years, then he was to be paid the principal of his share. The incomes of the shares of the sons who were minors was to be paid to their respective guardians until they should reach the age of twenty-one, and when they respectively attained the age of

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thirty years each one’s principal was to he paid to him. The shares of the girls were to he invested in like manner. It was provided that “ in case of the death of any or either of my sons before he or they shall have received the whole of his or their share or shares, such share or shares of said deceased son or sons and the remainder thereof, as the case may be, shall immediately on such decease be paid over to the living issue of said son or sons in equal proportions, share and share alike. Should such deceased son or sons leave no lawful issue then such share or shares shall revert to and form part of my residuary estate, to be divided in shares for the benefit of my surviving children as aforesaid.” A son died after reaching his majority, but under the age of thirty years without issue. Meld, that the principal of his share must be held by the executors and invested by them, the income applied for the benefit of the surviving children as if the son who died had never existed, except the share of the oldest son, who was over thirty years old, which should be paid to him at once. The question involving the construction of the will of the testatrix, which is considered in the following opinion, was submitted to the surrogate’s court on a proceeding for the judicial settlement of the ac counts of the executors. The facts will be found stated sufficiently in the opinion.

J. H. K. Blauvelt, for executors; • William Bernard, for special guardian.

All that seems to be necessary in this matter is, to ascertain the meaning and intention of the testatrix, as expressed in her will. She was twice married, her first husband’s name being Cohen. After making provision for her last husband, she disposed of the residue of her estate by directing it to be divided into seven equal shares for her then seven children, of whom three were sons and four daughters, all of whom were minors, with one exception. Each son’s share she directed to be invested on bond and mortgage on sufficient real estate, in the executors’ names, the interest or income arising therefrom to be paid to her son, Samuel M. Cohen, who was of age, until he should arrive at the age of thirty years, when he was to be paid the principal of his share. The income of the shares of the sons, who were minors, was to be paid to their respective guardians, for their support and education, until they should severally arrive at the age of twenty-one years, when the income was to be paid to them personally; and when they respectively attained the age of thirty years, each one’s principal was to be paid to him. The executors were also authorized, in their discretion, to make advances to the sons, out of their respective shares, after they had attained the age of twenty-five years, provided that such advances should not exceed one-half of each share.

The shares of the girls were to be invested in like manner and the income to be applied to support and education, until they were respectively married, or became twenty-one, when it was to be paid to them for life, with remainder to their issue, and in case of death without issue, the share

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of the one so dying was given to the surviving children, in equal proportions.

Then, by a subsequent clause, it was provided that “in case of the death of any or either of my sons before he or they shall have received the whole of his or their share or shares, such share or shares of said deceased son or sons, or the remainder thereof, as the case may be, shall, immediately on such decease, be paid over to the lawful issue of said son or sons, in equal proportions, share and share alike. Should such deceased son or sons leave no lawful issue, then s.uch share or shares shall revert to and form part of my residuary estate, to be divided into shares for the benefit of my surviving children as aforesaid.”

A provision was also made for letting in any after-born children to share in the residuum, in the same manner and under the same restrictions as given to the children then living. She had such after-born children.

One of the sons has died, pending the administration of the estate, at the age of twenty five years and upwards, but under thirty, and without issue. The question is, are the surviving brothers and sisters now entitled to his share, or what may remain of it, being about $980, in possession, or must it still be held by the executors ?

It seems very clear, and it is so held, that, in the very language of the will, his “share shall revert to and form part of the residuary estate, to be divided into shares, for the benefit of my surviving children, as aforesaid.” It now forms a part thereof, henceforth, just as if he never had existed, and must be held by the executors, be invested by them, the income applied, and the other sons’ shares thereof be paid over to them on their attaining the specified age, except the share of Samuel M. Oohen, who, being over thirty years old, is entitled to his at once.