Cone v. Kent

128 A.D. 409, 113 N.Y.S. 37, 1908 N.Y. App. Div. LEXIS 488

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 11, 1908
• Status: Published

Opinion

Robson, J.:

The testator, John K. Kent, died February 14, 1892, leaving him surviving his widow, Mary E. Kent; and Mary A. Kent, the only child of his deceased son, as his only next of kin and heir at law. Defendant Sarah Jenks is a niece of deceased. The granddaughter Mary A. Kent at the time of testator’s death was an infant about twelve years of age. She survived Mary E. Kent, testator’s widow, who died August 31, 1900. Mary A. -Kent died February, 1907, aged twenty-seven years, and being unmarried, childless and intestate. Her only next of kin is her mother, the defendant Ella Kent. After the death of the widow the surviving executor sold the testator’s real estate, and up to the date of the death of Mary A. Kent paid her the income of the estate. He has on hand about $2,200 as the principal of said estate, and now seeks instruction by the court as to whom he shall pay and deliver this fund.

It does not appear that a personal representative of the estate of Mary A. Kent has as yet been appointed. Ho question is made, however, as to whether the appointment of such a representative and his presence as a party are necessary to a complete determination of the action, and we need not now consider that suggestion.

We think the interest in testator’s estate given by his will to his granddaughter, Mary A. Kent, was a life interest therein, subject to the prior life interest in said estate given to the widow, Mary E. Kent, and subject to the trust therein created by the 5th' item of his will, which estate might be enlarged to and become an absolute title to said residuary interest provided she should arrive at the age of twenty-one years and have heirs of her body, and, though she had passed the age of twenty-one prior to her death, yet never having had a child, her interest in said estate terminated at- her death, and the defendant Sarah Jenks is now the owner of and entitled to the fund now representing the estate of testator in the hands of the trustee.

The interest in testator’s estate to which Sarah Jenks is entitled is given her by the 4th item of his will and is -a gift of the whole residue and remainder of his estate, subject, however, to the proviso that the grandchild, Mary A. Kent, “ shall die without leaving any heir or heirs of her body.” It is, of course, the settled rule of construction, as stated by Rapallo, J., in Matter of New York, Lackawanna & Western R. Co. (105 N. Y. 89), “ That where there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first named devisee during the lifetime of the testator and that if such devisee survives the testator, he takes an absolute fee.” ' Also that when a life estate in another is interposed before such contingent gift the death referred to is the death of such devisee before the termination of the precedent life estate. (Matter of Farmers’ Loan & Trust Co., 189 N. Y. 202.) This rule is urged by respondent’s counsel as decisive of this case in her favor. But the obligation of applying this rule of construction rests lightly on the conscience of the court and is itself subject to important exceptions. “ It has no application if the will contains language from which a contrary intention on the part of the testator can be ascertained.” (Matter of Cramer, 170 N. Y. 271, 275.) It would seem that such “a contrary intention on the part of the testator” is expressed in his will. It will be observed that the testator nowhere in his will in terms gives to the granddaughter the absolute interest in or title to the residuary estate. ■ It is all the use of the property which. is given to her by the 3d item of the will, from and after the decease of testator’s wife and subject to the management of the property by the trustee as thereinafter expressed; that is, as expressed by the trust clause which is the 5th item of the will. In terms she is given simply a life estate in the property. It is urged, however, that the intention of the testator-to give her the absolute title to the property, in the event she should survive the widow and attain the age of twenty-one, is apparent from the fact that in the item of the will establishing the trust for her benefit the trustee is directed to “ pay over and deliver the said property to the said grandchild when she arrives at the age of twenty-one years, or to the heirs of her body, if any, after her decease.” It, may be that, if testator’s meaning were to be gathered from this expression alone, and nothing further appeared in the will indicating a different intention, the respondent’s position would be correct. But such different expression of intention is clearly shown in the succeeding sentence, which closes the item referred to, by which the testator explicitly directs that the property is not to be delivered to her unless she has “such heirs.” In order to sustain respondent’s position we must necessarily disregard this expression of testator’s intention. This we are not at liberty to do.

The judgment should be modified in accordance with the foregoing opinion and as modified affirmed, with one bill of costs to appellant and bill of costs to respondent Duane M. Cone, trustee, etc., payable out of the estate.

All concurred.

Judgment, modified so as to provide that the defendant Sarah Jenks, on the death of Mary A. Kent, the life beneficiary, without having ever had any heirs of her body, became 'the absolute owner of the residuary trust estate, subject only to the 'charges of the trustee, and was entitled to the possession thereof, and that the same be paid to her by the plaintiff; and as so modified affirmed, with one bill of costs to the appellant and one bill of costs to the respondent Duane M. Cone, trustee, etc., payable out of the estate.