In re Franze

251 A.D. 837, 296 N.Y.S. 687, 1937 N.Y. App. Div. LEXIS 7890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 1937
• Status: Published

Opinion

Decree of the Surrogate’s Court of Kings county, in so far as it adjudges that the residuary estate be divided into five separate trusts for the benefit of the respective beneficiaries, with income paid to them, and that upon the death of the said beneficiaries the corpus shall go to the issue of the cestui per stirpes, reversed on the law, with costs to appellants, payable out of the estate, and the matter remitted to the Surrogate’s Court to enter a decree which shall provide that by paragraph fourth of the will the gifts of income to the children named were absolute and carried with them the corpus of the estate; subject, however, to the use of the shop and garage by the son, Harry P. Franze, during his pleasure. The clause relating to the contingency of the decease of any of the testator’s children is to be construed as relating to such children as shall predecease the testator, in accordance with the general rule, in the absence of language in the will evincing a contrary intent. The direction to divide the entire income of the residuary estate among the five named children, there being no disposition of the corpus, is to be construed as a devise or bequest of the property itself. (Hatch v. Bassett, 52 N. Y. 359, 362; Tabernacle Church v. Fifth Ave. Church, 60 App. Div. 327, 335; Vanderzee v. Slingerland, 103 N. Y. 47, 53; Locke v. F. L. & T. Co., 140 id. 135, 146; Mott v. Richtmyer, 57 id. 49; Paterson v. Ellis, 11 Wend. 259, 298.) Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.