In re the Judicial Settlement of the Estate of Goble — 30 N.Y. St. Rep. 944

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In the Matter of the Judicial Settlement of the Estate of Elias O. Goble, Deceased.

(Surrogates Court, Orange County,

Filed March 10, 1890.)

Headnote

Í. Wills—Legacy.

Testator gave to his granddaughter Edna the sum of $1,000, to be paid when she attained the age of twenty-one years, and the residue to his wife for life. Held, that the legacy was vested, the time of payment onty being deferred, and that as no other provision was made for her in the will, the iritenlion of the testator evidently was that this sum should he set apart for her, with the income to be accumulated from one year after testator’s death, and received by her only when she was twenty-one.

3. Same—Definition—" Childben.”

After the death of his wife, testator directed that the residue should be

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divided among his children, share and share alike, except that the shares of certain deceased children should he paid to his daughter and to a giandson named. Held, that the word “children” did not include grandchildren; that testator by directing who should take the shares of his deceased children pointed out the exceptions he intended to make, and that Edna could not share in the distribution of the residue.

3. Same—Advancements.

The will directed that such distribution should be subject to advancements theretofore made to certain sons, and that certain sums be charged against the share of each. Held, that in the absence of the use of the expressions “further” or “additional,” it would be assumed that testator fixed these sums as the amounts which he wished deducted, and that he did not wish the actual advancements to be also deducted.

Testator died June 12, 1884, leaving a will dated January 12, 1884. The will contained the following provisions:

Third. I give and bequeath to my granddaughter, Edna Miller, the sum of $1,000, to be paid to her when she attains the age of twenty-one years.

By the fourth clause he gives all the rest and residue of his property to his wife for ber life.

Sixth. Upon the death of my wife I direct my surviving executor to divide all my said residuary estate among all my children, share and share alike, except that the share or interest which my daughter, Mary E. Wood, deceased, would have had, had she survived me, shall be paid to my daughter Ella L., and the share or interest which my son William T. Goble would have had, had he survived me, shall be paid to my grandson, James 0. Goble, the son of the said William T. Goble, deceased ; and such distribution of my residuary estate shall be subject also to the advancements heretofore made by me to my sons Nathan Goble and John B. Goble, and the sum of $1,000 shall be charged against and be deducted by my executor from the distributive share of my son, Nathan Goble, in such residuary, and the sum of $2,500 shall be charged against and be deducted from the distributive share of my son, John B. Goble, in such residuary.

Edna Miller is the only child of a deceased daughter of the testator. Her mother died when she was about two years old; she is now about seventeen years of age; her father is living, but she has been supported, since her mother’s death, by an aunt.

The widow of Elias O. Goble, the testator, is now dead.

John J. Beattie, for Montgomery H. Vernon, executor; L. D. Blanchard, for Anna M. Blanchard; B. R. Champion, special guardian of minor, Edna Miller.

The first question presented for my consideration is, whether Edna Miller is entitled to any income upon her legacy, and if so, from what time ? The legatee is a granddaughter of the testator, but was not supported by him. The legacy cannot, therefore, be presumed to have been given for her maintenance, and clearly, if entitled to interest at all, is only entitled to interest from one year after the testator’s death.

As a general rule, legacies will not carry interest before the time for their payment, whether vested or not If the testator is a

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parent (or in loco parentis) of the legatee, and the legatee is a minor, interest is allowed as maintenance, but this exception to the rule is not extended to grandchildren. Wms. on Ex., 1429 (orig. p.); Lupton v. Lupton, 2 Johns. Ch., 614 ; Van Bramer v. Ex’rs of Hoffman, 2 Johns. Cases, 200. It has, however, been held that where a fund is severed immediately from the testator’s death for the benefit of the object of the gift, not only is the gift vested, but carries the interim income. Dundas v. Wolfe Murray, 1 Hemm. & M., 425.

I have not been able to find any case in this state where the court has made this distinction, but I can see no reason why, under a similar state of facts, it might not be so held.

In Dundas v. Wolfe Murray, the testatrix directed that her execur tors raise ¿65,000 out of a designated fund, to be held in trust, to pay the same to five children of her sister, the shares of such as were sons to be paid to them on attaining twenty-one years of age, and to the daughters at twenty-one or at marriage. The balance of the fund, from which the ¿65,000 was to be raised, she disposed of in other ways. The vice-chancellor says: “I think the testatrix intended to make complete and immediate separation of the two funds. * * * I am of opinion, therefore, that this was a vested interest, and not only so, but that it was to be severed for the benefit of the objects of the gift, and that the plaintiffs are consequently entitled to the intermediate income.”

The legacy to Edna Miller is vested, only the time of payment being deferred. The legacy must be held for her until that time by the executor, or his successors in the trust. It is. true that, the testator does not say that she is to receive the income derived from the fund in the meantime, nor does he say that any one else shall receive it, for the gift to his wife is of all the rest and residue of his property for her life, and' upon her death such residue is to be distributed. Edna does not share, as I shall show hereafter, as the representative of her mother in that distribution, this provision being already made for her. For these reasons I think the testator intended this sum of $1,000 to be set apart for the benefit of his granddaughter, with all the advantages which might accrue therefrom, to be accumulated and received by her, however, only when she should become twenty-one years of age.

The next question for consideration is whether Edna Miller as the only child of her deceased mother is entitled to share in the distribution of the residuary estate as being included in the term “ children.” Her mother was dead at the time the will was made and the case, therefore, does not come within the statutory provision. The word children ordinarily does not extend further than immediate descendants; where, however the testator uses the-word 11 children,” and the word “ issue,” indiscriminately, the meaning of the word “ issue ” may be given to the word “ children,” and thus include grandchildren. Prowitt v. Rodman, 37 N. Y., 42 . It is claimed by the special guardian that the testator did not use the word children in its limited sense in this case, be

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cause the testator goes on to say who shall take the shares of Ms deceased children Mary E. Wood and William T. Goble. On the other hand the counsel for the executor claims that this very fact excludes the idea and that the testator by so doing pointed out the exceptions he intended to make. I think the latter view of the case the correct one, and I am confirmed in this opimon by the further fact that the testator had earlier in the will made provision for his granddaughter Edna Miller, and it is not probable he intended her to take that much more than his other children.

I now come to the' question of advancements. The testator directs the distribution of the residuary estate subject to the advancements heretofore made by him. Among the papers belonging to the deceased there were found after his death by Ms executors these papers signed by his son Nathan Goble, of wMch the following were copies:

“ Received of Elias 0. Goble fifteen hundred dollars as part of my portion of said Goble’s estate.

II April 1, 1865. Nathan Goble.”

“$965. April 1, 1870.

“Received of E. O. Goble nine hundred and sixty-five dollars in full of all demands to this date.

“ Nathan Goble.”

“ $500. Florida, December 17,1874.

“ On demand I promise to pay to E. O. Goble, or bearer, five hundred dollars for value received, with interest.

The will was made January 12, 1884, and Elias O. Goble died June 12, 1888. If he had not mentioned advancements made by him to his children prior to the making of the will, the presumption would have been that he had taken them into consideration in determining the provision made in the will for Ms son Nathan. Clark v. Kingsley, 37 Hun, 246 ; Arnold v. Haroun, 43 id., 278 . But he directs the distribution to be made subject to advancements heretofore made, and it is necessary to determine whether the testator intended to fix the amount of those advancements by the sums which he directed should be deducted from the shares of Nathan and John R., or, whether the sums named by him were to be added to such advancements. The sums named by him are not stated to be the amount of these advancements, nor to be the amount which is to be withheld on account of them. The direction is that the distribution shall be subject to advancements heretofore made and the sum of $-shall be charged against and deducted from the share of, etc. The amount advanced to Nathan is much larger than the sum directed to be charged against his share. No evidence, however, seems to exist of advancements to John, and yet a much larger sum is charged against Ms share than Nathan’s.

Was it the testator’s purpose by adding the sums named by him to the evidences of advancements held by him against

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Nathan, to cover advancements to John of which he had no-evidence, and thus equalize the distribution? I confess to a. considerable doubt as to what he intended. It is quite apparent that the testator used the $1,000 and the $2,500 to represent advancements made by him to these sons, although as we know they did not cover all advances made. Nathan had had more than $1,000. We cannot know how the testator arrived at the two sums fixed by him, and it appears to me that the only safe course to pursue is to assume that these sums were fixed by him as the amounts which he wished deducted from his sons’ share on account of advancements theretofore made to them by him. It is significant that no such expression as “further ” or “ additional ” is used in the phrase commencing “ and the sum of $1,000 shall be charged,” etc.

The decree will, therefore, direct the executors to retain the legacy of $1,000 to Edna Miller, and invest the same for her benefit during her minority, and that she be paid the same with accumulations when she becomes twenty-one years of age; that, in making the distribution of the residuary estate the executor divide the same among the children of the testator who are now living, and to the representatives of such as were living at the time the will was made; and that in making such distribution the share of the testator’s son Nathan be charged with the sum of $1,000 advancements and the share of John R. with $2,500 advancements.