In re the Estate of Crossman — 20 N.Y. St. Rep. 144

Majority

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In the Matter of the Estate of Henry Crossman, Deceased.

(Surrogate’s Court, Kings County,

Filed October, 1887.)

Headnote

1. Legacies—Law eavobs vesting oe.

The law favors a construction of a will which leads, to the vesting of legacies and seeks diligently for such purpose and intention on the part of the testator. Following Smith v. Edwards, 88 N. Y., 109 .

2. WILL—CONSTBUCTION OE.

The decedent’s will provided that the executors "‘do set apart of my estate, the sum of $100,000, and keep the same out at interest, and that they apply the interest or income therefrom to the use of my wife, and that from and after her death they pay over the said sum to Henry 0. Crossman, if he then shall have arrived at the age of twenty-eight, but if at her decease he shall not have arrived at the age of twenty-eight, to keep the same invested and apply the income of the same to his use, and at the said age to pay the principal, etc.” 12eld, that the legacy to Henry C. Crossman vested upon his obtaining the age of twenty-eight years under 1 Revised Statutes, page 723, section 13, and page 773, section 2; ' that the income of the residuary estate belonged to Henry C. Cross-man under 1 Revised Statute, page 72G, section 40.

Objections were filed upon the judicial settlement of Charlotte E. Crossman and Samuel Burnham as executors of the last will and testament of Henry Crossman, deceased, and by all parties whose interests were adverse to the claims of the estate of Henry C. Crossman, deceased, son of the testator. The testator by the third clause of his will provided for a fund for the separate maintainance of his wife. The amount which he directed by this clause to be set apart for this purpose was the sum of $100,000. It was

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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, “and from and after her death they pay over the sum of $100,000 to her adopted son, Henry Ó. Grossman, if he shall 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 sum 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 and not leave lawful issue him surviving, then the said sum of $100,000 shall be divided as follows.” The residuary clause was, “of the rest, residue and remainder of my estate, real and personal,. * * * I do give, devise and bequeath unto my adopted son, Henry C. Grossman, to be paid over to him when he shall arrive at the age of twenty-eight years. If my said adopted son shall depart this life without having obtained the age of twenty-eight years and leaving lawful issue him surviving, then my said residuary estate shall be paid over to his issue, but if he shall die under that age and without leaving lawful issue him surviving, then the whole income of my said residuary estate shall be applied to the use of my wife for and during her natural life, and upon her decease the principal is to be divided among my next of kin and heirs at law as if I had died intestate.”

Henry 0. Grossman died after he became twenty-eight years of age, and left no children, and no will; the widow of the testator is still living.

James B. Steers, Jr., for executors; Harold Vernon, for William H. Cross and others; Daily & Bell, for E. S. Westphal; James A. Hudson, for J. F. McCarthy; Eugene Smith,, special guardian.

Henry C. Grossman attained the age of twenty-eight years, and the testator must be deemed to have intended that the bequest of $100,000 should vest, although payment was deferred until the death of the testator’s widow. We are to encourage, always, a construction which leads to the vesting of legacies, and seek diligently for such purpose and intention. Smith v. Edwards, 88 N. Y., 109 .

The direction to the executors to pay the $100,000 to Henry 0. Grossman when he arrives at the age of twenty-eight is absolute, save that the executors are to hold that sum, for the purpose of paying the income to the testator’s widow during her life; and it is only in the event of the death of Henry under the age of twenty-eight years that

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othersare to take. The legacy to Henry C. Grossman vested upon his attaining the age of twenty-eight years, because the statute declares that future estates are vested where there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate (1 R. S., 723, § 13); and it is further provided that limitations of future or contingent interests in personal property shall be subject to this rule. Id., 773, § 2.

Henry C. Crossman, at the age of twenty-eight years, would have an immediate right to. the possession of his legacy, upon the ceasing of the intermediate or precedent estate, unless it is conceded, as claimed by the contestants, there was no gift of this legaacy, save in the direction to pay upon the death of the testator’s widow, and that, for that reason, vesting was deferred until such event.

The like claim was made in a case where the wording of the will bore a close resemblance to the wording of the will in question, but the court denied the construction here contended for by the contestants. Lane v. Brown, 20 Hun, 382 . The cases cited for the contestants mainly arose upon contingent devises and bequests, and deal principally with the statute against perpetuities and with conditions not found in this will. It will be observed that there is no gift ¡over in the event, which has occurred, of Henry dying over twenty-eight years of age during the life of Mrs. Grossman (unless it was to Henry as residuary legatee). It would be unreasonable to suppose that the testator intended to give to the issue of Henry the fund did Henry die before he was twenty-eight, and yet intend to cut off both him and his issue if he died after the age of twenty-eight and during the life of testator’s widow. The technical rule relied upon by the contestants must give way to the intention of the testator where that sufficiently appears. I also think that, if there was a lapse, Henry would take as residuary legatee.

In respect to the income of the residuary estate, the executors properly claim that such income devolved upon Henry 0. Crossman, under the Revised Statutes. 1 R. S., 726, § 40.

The contestants having no interest in this matter, their objections to the executors’ account must be dismissed.