Majority
p. 259In the Matter of the Judicial Settlement of the Account of Caroline E. Crossman and Ano., Ex’rs of the Last Will and Testament of Henry Crossman, Deceased.[1] (Court of Appeals, Filed May 3, 1889.)
Headnote
1. Wills—What general residuary bequest carries with it.It is a settled rule of law that a general residuary bequest of personal property, or of chattels real, carries to the residuary estate, not only such estate and such interest therein as the testator did not attempt to dispose of by other provisions of his will, but every part of his property, which, by lapse or otherwise, is not effectually bequeathed and disposed of to others.
2. Same—Accumulation op income—To whom belongs—1 B. S., 726, §40.
When in consequence of a valid limitation of an expectant estate, there is a suspension of the power of alienation or of the ownership during the continúanos of which the income is undispos'd of, and no valid direction for its accumulation is given, such income belongs to the person presumptively entitled to the next eventual estate, and this applies as well to the income of personal estate.
Henry Grossman died January 7, 1881, leaving a last will and testament, the third and seventh clauses of which are as follows:
'Hurd. I desire to make ample provisions for the support and maintenance of my said wife, and in addition to what I have above given, I order and direct that my executors,
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before paying the legacies hereinafter mentioned, do set-apart of my estate the sum of one hundred thousand dollars, and keep the same invested and out at interest, and that they apply the interest or income therefrom to the use of' my said wife, in half yearly payments, oroftenerif convenient, during the term of her natural life, and that from and' after her death they pay over the said sum of one hundred thousand dollars to our adopted son, Henry C. Crossman, 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 orilleóme to his use, and on his arrival at the age of twenty-eight years, the said principal and the 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 one hundred thousand dollars shall be divided as follows, and I do give and bequeath the same accordingly One thousand dollars to the orphan asylum, formerly in Cumberland street, in the city of Brooklyn ; one thousand dollars thereof to the Brooklyn hospital, and the balance to-be equally divided among the children and grandchildren of the following named persons, viz: The children and grandchildren of my brother, James Grossman, and of my sister, Susan Barnet, except her son, Charles Barnet, and should any of the said children die before me, leaving lawful issue, him or her surviving, I direct that the share which the one so dying would have been entitled to if living, shall be paid to such issue; but if my said adopted son shall die under the age of twenty-eight years, and leaving lawful issue him surviving, then the said sum of one hundred thousand dollars is to be paid over to such issue, and I do bequeath the same accordingly.
Seventh. All the rest, residue and remainder of my estate,, real and personal, wheresoever and whatsoever, and such as-I shall hereafter acquire, I do give, devise and bequeath unto my adopted son, Henry C. Grossman, to be paid over to him when he shall have arrived at the age of twenty-eight years; if my said adopted son shall depart this life without-having attained 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.
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I do hereby nominate, constitute and appoint my said wife, Caroline E. Crossman, executrix, and my friend, Samuel Burhans, of the city of New York, and my said son, Henry C. Crossman, executors of this my last'will and testament, and trustees under the same, and I do hereby authorize and empower them, and the survivor of them, and such one or more of them as shall act for the time being, to sell and dispose of any, and all, my real estate not herein specifically devised, and to convey the same to the purchaser or purchasers thereof.
It is my earnest desire that my friend, Samuel Burhans, will serve as my acting executor and trustee.
The provision herein made for my said wife, Caroline E. Crossman, is to be taken and accepted by her in lieu and bar of dower, and all other claim on my estate.
Later, in the same month, the will was admitted to probate, and letters testamentary thereon were issued by the surrogate of Kings county to Caroline E. Crossman, Henry C. Crossman and Samuel Burhans, the executors named therein. The testator left no issue, and Henry C. Crossman was an adopted son. He became twenty-eight years of age on the 15th day of October, 1885, and died on the 13th day of May, 1886, leaving Caroline E. Crossman, the widow of the testator, surviving him. He left a last will and testament, in which he disposed of all his property, real and personal, to Caroline E. Crossman and Samuel Burhans. After his death, Caroline E. Crossman and Samuel Burhans, the surviving executors, made application to the surrogate for the judicial settlement of their accounts as executors, and in pursuance of that application their accounts were presented to the surrogate and came on for settlement, and certain of the next of kin of the testator appeared and contested the same, and filed objections thereto. Their objections were all overruled on the ground that they were not interested in the estate of the testator. The, decree of the surrogate upon the final settlement of the accounts, was affirmed at the general term, and then certain of the next of kin of the testator appealed to this court.
Eugene Smith, for app’lts; James R. Steers, Jr., for resp’ts.
It was held by the surrogate, and upon appeal by the supreme court, that Henry 0. Crossman took a vested remainder in the $100,000 which the executors were directed to set apart and hold for the benefit of the widow during her life, and that he took it by virtue of the language contained in the third clause of the will; that therefore the testator did not die intestate as to any portion of his estate, and that his next of kin were not entitled to any hearing upon the accounting.
Without determining whether or not the courts below were right in their construction of the third clause of the
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will, we have no reason to doubt that Henry 0. Crossman took a vested interest in remainder in the $100,000 under the residuary clause. It is clear that the testator did not intend to die intestate as to any portion of his estate. He had taken particular care as to the dispositions made in the prior clauses of the will, and it is true that in several of them he provided distinctly that in certain contingencies the gifts should become part of his residuary estate, and that he made no such provision in reference to the $100,000. But we do not deem that circumstance of much importance. The language of the residuary clause is sweeping and unqualified, and in that he gives, devises and bequeaths to Henry C. Grossman all the “rest, residue and remainder ” of his estate, real and personal, “wheresoever and whatsoever,” and what he should thereafter acquire. Ho language could be broader and more comprehensive, and whatever was not included in the prior provisions and effectually disposed of, is carried under this residuary clause to Henry C. Crossman. He was a general residuary legatee, and therefore, as said in 2 Roper on Legacies, 463, “ he is entitled to not only what remains after paying all debts and legacies, but also to whatever may by lapse, invalid disposition, or other casualty, fall into the residue, after the date and making of the will.” And the case is governed by the rule laid down by the chancellor in King v. Strong (9 Paige, 94), as follows: “It is settled that a general residuary bequest of personal property, or of chattels real, carries to the residuary legatee not only such estate and such interest therein as the testator did not attempt to dispose of by other provisions of his will, but every part of his property which, by lapse or otherwise, is not effectually bequeathed and disposed of to others.”
We see nothing in the other provisions of the will to qualify the effect to be given to the general provisions of the residuary clause. It is clear that the testator meant to dispose of all his property, and that he intended by the residuary clause to give to Henry C. Crossman what had not before been effectually disposed of. See also, In re Benson, 96 N. Y., 499 ; Cruikshank v. The Home of the Friendless (recently decided in this court), 22 N. Y. State Rep., 738.
In this case, the residuary estate was large, and no direction was given in the will for the disposition of the income thereof until Henry C. Crossman reached the age of twenty-eight years; and the next of kin of the testator, thererore, claim that such income was undisposed of, and that they were entitled to the same. We think the disposition of the income is controlled by the provisions of the Revised Statutes (l R. S., 726, § 40), which provides that: “When,
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in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate.” There was no direction whatever for the accumulation of the income. That was undisposed of, and Henry C. Grossman was presumptively entitled to the next eventual estate, and it was therefore payable to him as it accrued after the death of the testator. Gilman v. Reddington, 24 N. Y., 9 ; Manice v. Manice, 43 id., 303; Radley v. Kuhn, 97 id., 26.
The provision of the Revised Statutes strictly applies only to the rents and profits of real estate. But by analogy the same rule should probably be applied to the income of personal estate. But, so far as the residuary estate was personal, its income belonged to Henry C. Grossman as the owner of the corpus thereof, and not being otherwise disposed of, was payable to him as it accrued. It would seem to be a reasonable rule, that such an owner should have the income of his own property.
We are, therefore, of opinion that the judgment should be affirmed, with costs.
All concur.