In re the Estate of Bellows

103 A.D.2d 594, 480 N.Y.S.2d 925, 1984 N.Y. App. Div. LEXIS 20185
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 29, 1984
StatusPublished
Cited by17 cases

This text of 103 A.D.2d 594 (In re the Estate of Bellows) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Estate of Bellows, 103 A.D.2d 594, 480 N.Y.S.2d 925, 1984 N.Y. App. Div. LEXIS 20185 (N.Y. Ct. App. 1984).

Opinion

OPINION OF THE COURT

Boyers, J.

Testatrix, Stella Reynolds Bellows, died on December 21, 1924, survived by her husband Charles M. Bellows, and their three children, Margaret Clark, Donald Bellows and Reynolds Bellows.

[595]*595By a will executed in 1917 and a codicil executed shortly before her death, the testatrix created three separate trusts. When her estate was appraised in 1925, it was determined that at the time of her death, there was no property of the nature described in the first two trusts, thereby rendering them inoperable. Accordingly, the entire estate, which the executor found to have an appraised value of approximately $670,000, being derived mainly from gifts from the testatrix’ father, James E. Reynolds, and the liquidation of her holdings in the firm of J.E. Reynolds & Co., was to be distributed pursuant to the residuary provisions of the third trust set forth in paragraph fifth of the testatrix’ will, as modified by the subsequently executed codicil.

Pursuant to this fifth paragraph, a trust of “the rest, residue and remainder” of the testatrix’ estate was created “for the following uses and purposes”:

“To invest, re-invest, and keep the same invested, and to pay so much of the net income derived therefrom as together with the income from any other trust created by this my Will shall equal the sum of Five Thousand Dollars ($5,000) during the lifetime of my said father, to my said husband, charles m. bellows; and the surplus of said net income, if any, to my said children share and share alike.
“Upon the death of my said father, if the income from my entire estate shall then equal or exceed the sum of Twenty Thousand Dollars ($20,000) per annum, I direct that so much of the income from my said residuary estate as together with the net income from any other source whatsoever under this my Will, shall equal the sum of Ten Thousand Dollars ($10,000) per annum, be paid to my said husband, charles m. bellows, during the term of his natural life, and the balance of said income in excess thereof, if any, shall be paid to my said children share and share alike during the lifetime of my said husband.
“Upon the death of my said husband, Charles M. Bellows, I direct that the principal of my said residuary estate be divided into as many equal shares or parts as I may leave children my surviving, and that the income from one of said shares or parts to be paid to each of my said children for and during the term of her or his natural life; and upon [596]*596the death of any of my said children, I direct that the principal share so held or to be held, in trust for the one so dying, be paid to his or her issue, or, if he or she die [sic] without issue, then that the principal of said fund so held in trust for the one so dying be divided equally between his or her surviving brothers or sister.”

The testatrix’ husband, Charles, died in 1952, and the trust continued, pursuant to paragraph fifth of the will, for each of the testatrix’ three children. At the time of siblings Margaret and Reynolds’ deaths, in 1969 and 1970, respectively, the shares of the trusts held for them were paid to their children, as per the will. The last of the testatrix’ children, Donald, died on February 21, 1981, leaving neither issue nor surviving brother or sister.

A review of the testatrix’ will and the codicil demonstrates that she failed to anticipate the exact contingency which arose, namely, the demise of her last surviving child without issue or living siblings. In May, 1981, Citibank, N. A., as trustee, apparently assuming that the testatrix intended that the corpus of the residuary estate trust created for her son Donald, as income beneficiary, would pass to the issue of Donald’s surviving brother and sister, distributed half of the remaining principal to the testatrix’ five grandchildren (Donald’s nieces and nephews), the appellants herein, specifically Margaret’s three children, and the two children of Reynolds. At that time, each grandchild received $14,000, making a total sum of $70,000 paid on account of distribution. Objections to this distribution were subsequently raised by Mary Whitnell, who was appointed in March, 1966 as the executrix of the estate of the testatrix’ husband’s second wife, Elizabeth Peck Bellows, and Vera D’Aragon, the executrix of Donald’s estate,1 it being their position that the remainder of the residuary estate trust should be distributed as intestate property. In December, 1981, Citibank, N. A., as trustee, filed its final account, petitioned for judicial settlement and requested that the Surrogate construe paragraph fifth of the will and more particularly the last paragraph thereof and determine whether the corpus of the trust created for Donald [597]*597Bellows should pass under the laws of intestacy or whether it was payable to the issue of Margaret Bellows Clark and Reynolds Bellows.

Finding that the testatrix’ will contained neither an express provision for the distribution of the corpus of the trust if the last of her children to die was not survived by issue nor other indicia from which it could be implied that the testatrix intended to name her grandchildren as contingent remaindermen to take in the event their uncle died without issue, the Surrogate directed that the undistributed portion of the residuary estate trust “be distributed as intestate property among decedent’s date of death distributees in the manner provided for by the statute of descent and distribution in effect at the date of testatrix [sic] death”. For the reasons discussed below, we reverse.

It is beyond cavil that the primary rule of construction is that a will should be read so as to reflect the testator’s actual intent unless contrary to law or public policy (7 Warren’s Heaton, Surrogates’ Courts [6th ed], § 16, par 1; § 17, par 1 [d]). Intent is not to be gleaned by focusing upon any one particular word, sentence or provision; rather, it must be ascertained from a perusal of the entire will by a reader mindful of the particular facts and circumstances under which the provisions of the instrument were framed (Matter of Thall, 18 NY2d 186, 192; Matter of Larkin, 9 NY2d 88, 91; Matter of Fabbri, 2 NY2d 236, 240; see, also, Matter of Jones, 38 NY2d 189, 193; Matter of Kosek, 31 NY2d 475, 483; Matter of Flyer, 23 NY2d 579, 584). Where a general testamentary scheme can be established from such a reading, it is the court’s duty to afford such purpose force and effect even if a “literal reading of the portion under construction might yield an inconsistent or contradictory meaning” (Matter of Fabbri, supra, p 240; see, also, Haug v Schumacher, 166 NY 506, 513; Williams v Jones, 166 NY 522, 533; Roe v Vingut, 117 NY 204, 212).

Corollary to this first rule of testamentary construction is the equally well-established principle that a court “may ‘give effect to an intention or purpose, indicated by implication, where the express language of the entire will manifests such an intention or purpose’ and the testator has simply neglected to provide for the exact contingency [598]*598which occurred. (Matter of Selner, 261 App. Div. 618, 620, affd. 287 N. Y. 664; see, also, Matter of Gulbenkian, 9 NY 2d 363, 370; Close v. Farmers' Loan & Trust Co., 195 N. Y. 92, 100; Masterson v. Townshend, 123 N. Y. 458, 462.)” (Matter of Thall,

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103 A.D.2d 594, 480 N.Y.S.2d 925, 1984 N.Y. App. Div. LEXIS 20185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-bellows-nyappdiv-1984.