Karstens v. Karstens

Appellate Division of the Supreme Court of New York

Karstens v. Karstens

51 N.Y.S. 795

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 6, 1898

StatusPublished

Cited by1 cases

This text of 51 N.Y.S. 795 (Karstens v. Karstens) 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.

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Karstens v. Karstens, 51 N.Y.S. 795 (N.Y. Ct. App. 1898).

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Opinion

VAN BRUNT, P. J.

We might very well base our affirmance of thé judgment appealed from upon the very satisfactory opinion of the court below, but we think that a consideration adverted to in the opinion is not given adequate weight in the construction of the will in question. A will is always to be. construed so as to give effect to the general intention of the testator as expressed in the whole instrument, and the court may transpose words and phrases, and read its provisions in an order different from that in which they appear in the instrument, and insert or leave out provisions, if necessary, but only in aid of the testator’s intent and purpose; never to devise a new scheme, or to make a new will. Tilden v. Green, 130 N. Y. 52, 28 N. E. 880. Applying this principle to the will in question, it seems to us to be clear that it was the intention of the testator to give an absolute interest in his estate to bis sons Herman and Henry, subject to his wife’s life interest. It appears from the instrument itself that the testator intended to make for his sons Herman and Henry a larger provision than for his sons John and Albert. He gives them their interest in the estate absolutely, whereas as to the interest of his sons John and Albert he gives to them only the income, and, if such sons die, either during the continuance of the intermediate estate or afterwards, their children-inherit the share which their parent would have taken if living. If the construction claimed by the appellant is to be put upon this will, then, in case either Herman or Henry died during the continuance of the intermediate estate, leaving children, such children could inherit nothing. This was clearly not the intention of the testator. He undoubtedly supposed that Herman and Henry would have an absolute title to their shares, and might make such disposition of the same as they might see fit. Present words of gift are contained in the devise and bequest to the trustees as the representatives of the beneficiaries, namely, his wife and children. They were to hold the estate for the benefit of the wife and children, to pay the income to the wife during her life, and upon her death to hand over two-thirds of it to Herman and Henry, and to hold the remaining one-tliird for the benefit of John and Albert, and upon their death to pay their share to their children, if they should leave any.

The judgment should be affirmed, with costs. All concur.

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VAN BRUNT, P. J.

We might very well base our affirmance of thé judgment appealed from upon the very satisfactory opinion of the court below, but we think that a consideration adverted to in the opinion is not given adequate weight in the construction of the will in question. A will is always to be. construed so as to give effect to the general intention of the testator as expressed in the whole instrument, and the court may transpose words and phrases, and read its provisions in an order different from that in which they appear in the instrument, and insert or leave out provisions, if necessary, but only in aid of the testator’s intent and purpose; never to devise a new scheme, or to make a new will. Tilden v. Green, 130 N. Y. 52, 28 N. E. 880. Applying this principle to the will in question, it seems to us to be clear that it was the intention of the testator to give an absolute interest in his estate to bis sons Herman and Henry, subject to his wife’s life interest. It appears from the instrument itself that the testator intended to make for his sons Herman and Henry a larger provision than for his sons John and Albert. He gives them their interest in the estate absolutely, whereas as to the interest of his sons John and Albert he gives to them only the income, and, if such sons die, either during the continuance of the intermediate estate or afterwards, their children-inherit the share which their parent would have taken if living. If the construction claimed by the appellant is to be put upon this will, then, in case either Herman or Henry died during the continuance of the intermediate estate, leaving children, such children could inherit nothing. This was clearly not the intention of the testator. He undoubtedly supposed that Herman and Henry would have an absolute title to their shares, and might make such disposition of the same as they might see fit. Present words of gift are contained in the devise and bequest to the trustees as the representatives of the beneficiaries, namely, his wife and children. They were to hold the estate for the benefit of the wife and children, to pay the income to the wife during her life, and upon her death to hand over two-thirds of it to Herman and Henry, and to hold the remaining one-tliird for the benefit of John and Albert, and upon their death to pay their share to their children, if they should leave any.

The judgment should be affirmed, with costs. All concur.

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