In re the Judicial Settlement of the Account of the proceedings of Shepard

113 A.D. 785, 99 N.Y.S. 377, 1906 N.Y. App. Div. LEXIS 1543

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 1906
• Status: Published

Opinion

Miller, J.:

By the 2d,' 3d and éth paragraphs respectively of his will, the testator gave to each of three'children property estimated by him to be of the value of $10,000, and provided that in case of the disposition of such property by him they should have the value thereof. By. the 6th paragraph he gave 150 shares of stock of the Hew York- and Harlem Railroad Company, or, in case of its disposal by him, the value thereof in money, which he estimated at $15,000,. to his executórin trust to pay the income to his wife during life, or, with her permission, to apply the same to the use or education of his grandson, Orville D. Oliphant, the son of a deceased daughter, and, upon the death of said wife, to apply said income to the use of said grandson until he should reach the age of twenty-three years, or sooner die, and upon both the death of said wife and the arrival of said grandson at the age of twenty-three years, he directed that the 'property or money so held in trust should' be paid to said grandson. By the 8th paragraph he gave his residuary estate: to -his executor in trust to divide the income during the life of the wife among the wife and his three children as provided. By-the 9th' paragraph he provided that upon the death of the wife said estate be divided into three shares, to be held in trust for the use of his three■ children respectively, and, upon_the death of a child, that his- share be distributed among the testator’s grandchildren as provided. ' Th last sentence of said 9th paragraph is as follows: Before any payment of principal shall be made to my grandson Orville D.. Oliphant I direct that there. shall be deducted therefrom the sum of five thousand dollars wkich shall be treated as part of my residuary "estate hereinbefore mentioned, the object- of this provision being to prevent my said grandchild by reason of the provision contained in the sixth clause of my will receiving a larger- proportion of my estate than any other one of my grandchildren.” I have omitted immaterial provisions and provisions for contingencies that have not occurred. The wife is dead; and. the grandson, Orville D. Oliphaut, lias arrived at the age of twenty-ithree years, and the question is-presented whether the provision quoted - supra refers to the principal of the trust of the 150 shares of stock created in the 6th paragraph of the will for the benefit of the wife and said grandson, or whether it refers to such portion of the residuary estate as might otherwise upon the death of a child be distributed" to said grandson. Wé think the learned surrogate correctly held that the provision' referred to the principal of the trust created by the 6th paragraph of the will. Opposed to this construction the appellánt urges the familiar rules that an estate clearly given in one part of the will will- not be cut down by subsequent words not equally clear, and that the courts strive to give that construction which will effectuate every clause of the will, but we think that the decree appealed from does no violence to either of these rules, and is in harmony with the con'trol- . ling rule that the testamentary intention must be effectuated. There is nothing ambiguous about the clause in question. It plainly directs the addition to his residuary estate of the sum of $5,.000 from the principal of the'share otherwise given to said Orville, and" the fact that this is to be added to his residuary estate clearly shows that it was to be taken, not from the residuary estate, but from some estate previously created. In the provision for distribution of the remainder of his estate among his grandchildren he states "that-lie, seeks by it, so far as the law permits, to procure such final distribution among liis grandchildren equally, and he names specifically the grandchildren whom he lias in contemplation. It is not necessary for us to- determine whether the. scheme will eventually work equality, among grandchildreri, but it is plain that- the testator regarded it as the-best" he cotrld' devise to effectuate such equality, and that he considered that'if Orville were-given the $15,000 principal of the trust fund created for him and, the testator’s wife, it might result -in inequality to the extent of the $5,000, which said' sum exceeded the amount absolutely given to each of the testator’s children; The argument that the testator could not have intended, that $5,000 should be deducted from 150 shares of stock is without force, because it is clear that in the testator’s mind the shares of stock only represented a given sum of money, and that tliex directions of the will are satisfied either by the delivery of the stock or its equivalent in 'money. The reason for making tlie principal of the trust $15,000 and then providing in a subsequent-paragraph that upon the •termination , of the trust the remainder to go to the said Orville should be reduced to $10,000, is clearly suggested in thé opinion o.f the learned surrogate, to the effect that the testator desired to give during the term of the trust created by the 6th paragraph the income from a larger sum than $10,000.

This construction seems to us the only One permitted by the express language of the testator, and the decree should, tliérefóre, be affirmed, with costs to .all parties payable out of the estáte! "

Hirschberg, P. J., Woodward, Jenks and Rich,. JJ., concurred.

Decree of the Surrogate’s Court of Kings county, in. so far as appealed from, affirmed, with costs to all “parties to the appeal payable out of the estate.