In re National City Bank

258 A.D. 64

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1939
• Status: Published

Opinions

Hagarty, J.

On the 11th day of January, 1935, John James Montgomery died leaving a will providing for a trust fund of the residuary estate, that the income should be payable to his widow for life, and that upon the death of his widow the trust should terminate, and that the trustee should sell and dispose of the corpus of the fund and pay therefrom the sum of $1,000 to each of two grandchildren, “ and the remainder shall be equally divided and paid to my sons Harry C. Montgomery, Robert Walker Montgomery and John Renwick Montgomery, or their survivors.” Harry C. Montgomery survived the testator but not the life tenant. The life tenant is still living. The question presented involves the right of the estate of Harry C. Montgomery to share in the residue. By the decree under review it is excluded from participation.

There is no language in this will which requires a departure from the well-settled rule that, ordinarily, a requirement of survivorship of a remainderman imposed by the testator refers to the death of the testator and not to the death of the life tenant. On the contrary, the testator provides that, with respect to the general and specific legacies and the payments from the remainder to his grandchildren, the question of survivorship should be determined by and at the time of his death, i. e., as he expresses it, “ die before me.” Furthermore, if the pertinent language here were construed as requiring the remaindermen to survive the life tenant, intestacy would result if the life tenant survived the other two sons of an earlier marriage, who are well advanced in years. While the language of the will is that the remainder “ shall be equally divided and paid to,” as distinguished from words of direct gift, vesting is not thereby affected. (Matter of Banker, 223 App. Div. 496, 501; affd., 248 N. Y. 596; Roosa v. Harrington, 171 id. 341, 353; Matter of Mahan, 98 id. 372, 376.) The designation of the three sons by name is an effective element in the determination of the intent of' the testator that the remainder should vest in the sons on their survival of the testator. (Moore v. Lyons, 25 Wend. 119, 150; Matter of Weaver, 253 App. Div. 24, 27; affd., 278 N. Y. 605; Matter of McParlan, 169 Misc. 1027, 1029. Cf. Matter of Watson, 262 N. Y. 284, 299, 300; Connelly v. O’Brien, 166 id. 406.)

The construction of the language of the will by the learned surrogate apparently resulted from his erroneous assumption that Harry C. Montgomery had been married to Clara Louise Montgomery. It was error to deny the appellant’s motion for a rehearing on the basis of a stipulation of the parties to the effect that Clara Louise Montgomery is the widow of Elbert Wilson Montgomery, a son who had predeceased the testator. That stipulation, of March 11, 1938, as well as the ear her one, dated February 9, 1938, will be received as documentary evidence. (Surr. Ct. Act, § 309.)

The decree should be reversed on the law and the facts, with costs to all parties payable out of the estate, and the matter remitted to the Surrogate’s Court for the making of a new decree in conformity with this opinion and containing an adjudication that Harry C. Montgomery had a vested interest in the remainder and for appropriate provisions in the decree settling the account in accordance with such construction. The decree should also include a recital of the stipulations of the parties entered into on February 9,1938, and March 11, 1938.

Close, J., concurs; Lazansky, P. J., concurs, with memorandum; Taylor, J., with whom Johnston, J., concurs, dissents in opinion and votes to affirm the decree.