Smith v. Smith — 30 N.Y. St. Rep. 344

Majority

p. 344

John B. Smith, Pl’ff, v. Jacob B. Smith et al., Def'ts.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

Wills—Constbtjction-.

Testator, by his will, directed the sale of the residue of his estate, the application of the income to the use of his widow for life, and the division of the fund upon her death into equal parts, and investment thereof for his children during their natural lives, and that on the death of each child his share should go to his child or children or the children of such child, or children if any such survived the parent. By a codicil he substituted his daughter-in-law in pla^e of his son, subject to the same limitations and remainders. The daughter-in-law died before her husband, leaving a grandchild her only issue, held, that at the death of the daughter-in-law the trust terminated and her share of the fund became vested in her granddaughter.

Appeal by Ann Eliza Yan Tassel, a legatee, from an order construing the will of Martin Smith and directing payment of a legacy to Georgiana G. Ackerson.

Henry G. Griffin, for app’lt; Edward Wells, Jr., for resp’ts.

This was an application by petition to the court to procure the determination of the right to certain funds now in the hands of the trustee appointed by the court to manage and control the residuary estate arising under the last will and 'testament of Martin Smith, deceased, and to execute the trusts connected with and impressed upon such residuary estate.

The petitioner, Georgiana G. Ackerson, is a granddaughter of Sarah Smith, a daughter-in-law of the testator, and claims the property in question under and by virtue of the tenth clause of' the will of Martin Smith, which directed his executors to sell the-residue of his estate and apply the income to the support of his widow during her natural life, and at her death to divide the residuary fund into five equal shares, and invest the same and pay over the interest of one of such shares to each of his five children, of whom Jacob B. Smith, the grandfather of the petitioner, was one, during their natural lives. Upon the death of each child the principal of his or her share was to be paid to his or her child or children, or to the child or children of such child or children if any such survived the parent

By a codicil to his will the testator substituted Sarah Smith, the wife of Jacob B. Smith, as legatee under the said tenth clause-of his will to the place of her husband, on the same terms and conditions and subject to the same limitations and remainders expressed and provided in respect to his son.

The only child of Sarah Smith was Anna Ackerson, the mother of the petitioner, and she died before her mother, leaving the petitioner as her only child and heir. She has now attained the age of twenty-one years, and claims the fifth part of the residuary fund set apart for her grandmother, Sarah Smith, or so much thereof as remains in the hands of the present trustee.

p. 345

The court, at special term, granted the prayer of the petition, and there is an appeal from that order.

We discover, in the codicil, the plain intention of the testator to give to Sarah Smith the share of his estate which he had given to her husband Jacob B. Smith, by the tenth clause of his will. That being so, when Sarah Smith died the petitioner was her only living issue, and fell directly within the terms of the tenth clause of the will.

At the death of Sarah Smith, the second beneficiary for life, the trust terminated and the fund beeame vested absolutely in the petitioner.

The order appealed from should be affirmed, with ten dollars costs and disbursements, to be paid by the appellant.

Pratt, J., concurs.