Lewisohn v. . Henry

72 N.E. 239, 179 N.Y. 352, 17 Bedell 352, 1904 N.Y. LEXIS 1105

Opinion

Vann, J.

The general purpose of the testator, as expressed in the seventh clause of his will, was to provide a liberal income for his children as long as they lived, free as to his daughters from the debts, control or interference of their husbands; to give his children one-lialf of his residuary estate as they grew old enough to be trusted with it, not all at once, however, but part at a certain age and the rest after an interval of five years and to give the other half to his grandchildren when it was no longer needed to produce an income for his children. Apparently he wished to do all he could for his children and at the same time prevent them from wasting his vast estate. He knew that whatever he gave them as a direct, immediate and vested gift they could dispose of and that they might waste it. He wished to give them nothing but the income at first and that subject to a limitation in the case of his daughters. He intended to keep one-half of the principal intact as long as his children lived, so that they might have an assured income, and as they passed away to give it in the proper proportions to their issue. The other half he wished to give to his children, but not so that they •could dispose of it until they severally reached an age when maturity of judgment should make them prudent.

He sought to effect these objects through a separate trust for the benefit of each child. Accordingly he directed his executors to divide his residuary estate into as many shares as would equal the number of his children, including such as should have died before him, leaving issue. He gave one share absolutely and in terms to the issue of each child dying before him, but, as it turned out, all of his children survived him. The remaining shares he gave to his executors “ to have and to hold ” as trustees, one share upon a separate trust for the benefit of each child who outlived him, with power to collect rents and profits, to invest, reinvest and the like. Each trust is express and in the form permitted by the statute, which provides that in such case “ the beneficiary shall not take any legal estate or interest in the property, but may enforce performance of the trust.” (Peal Property Law, §§ 76, 80.) He required his executors and trustees, after paying charges and expenses, to apply the net income of each share to the use of the child for whom it was held in trust until he or she should reach the age of 25 years, when they were to convey and pay over one-fourth of the capital of such trust estate “in fee simple and absolutely” to such child. After this the net income of the residue was to be applied to the use of the child until he or she should become 30 years old, when one-third of the trust estate then remaining was to be conveyed and paid over “ in fee simple and absolutely ” to such child. Thenceforth the net income of the remainder then left was to be applied to the use of the child during life, with the restriction then as well as previously that, in the case of a daughter, it should be free from the debts, control or-interference of her husband. Upon the death of a child the trustees were directed to convey and pay over the separate trust estate as it should then exist in fee simple and absolutely to the appointees of such child and in default of appointment to the issue then surviving in equal shares and in default of issue to the next of kin of such child.

One of the daughters died intestate after her father but before she reached the age of 25, leaving a husband and two infant children. The administrator of her estate claims one- half of the share set aside for her by the trustees upon the ground that the proportionate part, which was to be paid to her in two installments, one at the age of 25 and the other at the age of 30, had vested in her before her death. This construction of the will would defeat the primary object of the testator, which was to prevent his children from disposing of any part of the capital of the shares set apart for them, respectively, until they reached a certain age. He was determined that they should not squander his estate and he took great care to prevent that result, which he could not prevent in the case of their issue, appointees and next of kin owing to the limitations placed by law upon the right to create trusts. If a share vested in each child upon the death of the testator, it was subject to alienation at the will of the owner, for a vested right is alienable and may be assigned. Whatever one owns he may sell, even if the date of full possession and enjoyment is not due. (1 R. S. 723, § 10, 725, § 35; Paget v. Melcher, 156 N. Y. 399, 405.) While the general rule favors the vesting of estates it was adopted by courts as a guide to the probable intention of testators and is never applied when that intention, as gathered from the entire will, is that the estate should not vest. All rules for the construction of wills yield to the actual intention, when that is reasonably clear to the mind of the judge reading the words of the testator.

The express gift of capital is not to the children, but first to the issue of any child dying before the testator and second, a gift of what was left to the executors in trust for the children. The trustees took the legal title with the usual power of management and with the duty of applying the net income to the use of the respective beneficiaries. They were to “ have and to hold ” each share until the child for whose benefit it had been set apart should reach a certain age and, “ upon arrival” at that age, they were to convey and pay over to him or her a part of the capital “ in fee simple and absolutely.” The use of the word “ upon ” followed by a direction to convey indicates that until the contingency named should happen there was to be no vesting. So, the use of the phrase “ in fee simple and absolutely ” in directing payment of the installments and in the direction for final distribution, indicates that as there was clearly no previous vesting'in the case of the latter, none was intended in the case of the former. Said word and said phrase in each instance point to the time of vesting. There was no present gift to any child, but when or provided the child reached the age specified. Ho part of the capital was to go to the children until the time fixed for absolute transfer to them should arrive. The direct gift to the executors and the absence of any gift’of capital to the children in the first instance, show that there was no intent to vest title in them prior to the date named for distribution. The gift of capital to the children was through the direction to convey, and there was no vesting until the time to convey came around, if Matter of Baer, 147 N. Y. 348, 354; Matter of Crane, 164 N. Y. 71, 76.) An earlier vesting would serve no useful purpose and might defeat the object of the testator in guarding against improvidence. The title was to continue in the trustees until the trust ended subject to payment over of the installments if the beneficiary lived long enough, and upon the death of the beneficiary “ the capital of such estate,” in the language of the testator, “ as it shall then exist with all the gains, etc.,” was to go to the appointees by will, or if there were none, to the issue or next of kin. The language used in directing the final distribution at the end of the trust shows that the thought of the testator was that the entire capital might then be intact. He did not speak of the “ residue ” of the share, as he had previously when he referred to what was left after payment of an installment, and as would be natural if he thought that the distribytion by installments would necessarily precede the final distribution. On the other hand he directed that the capital of the trust estate “as it shall then exist” should be conveyed by the trustees in fee simple and absolutely to the appointees, issue or next of kin of the deceased child.

The will as we construe it shows no intent that any part of the capital should vest in Mrs. Henry before she became twenty-five years old, or that the gift over u^>on her death meant if she died after the age of thirty. The time is fixed by the words “ upon the death,” which are unqualified and mean, a death at any time after the death of the testator, for he had expressly provided for the case of a child who might die before he did. As the testator did not limit the njeaning of these words, we cannot, but must read them as he wrote them, adding nothing and omitting nothing. The punctuation, which is relied upon in this connection, is neither exact nor methodical throughout the seventh clause and hence is of slight importance. In any event it is a hazardous guide, especially when the testator merely hears the will read without reading it himself, and should be resorted to only when all other means of interpretation fail. (Kinkele v. Wilson, 151 N. Y. 269, 277.)

The grammatical construction of the seventh clause is peculiar, for while it contains over twelve hundred words it consists of but a single sentence. The frequent use of the conjunctive “ and ” unites into one sentence what otherwise would extend into many. The provisions which are thus in form set forth as grammatically connected are not so united in sense and substance as to be given a co-ordinate operation.

The rule that a clause containing an absolute gift will not be cut down by a later clause unless the latter is as clear and decisive as the former has no application, because there was no direct gift of capital to the children, nor, indeed, any gift of capital to them direct or indirect, until the time came for the trustees to convey to them “in fee simple and absolutely.”

We concur with the learned judges of' the Appellate Division in the conclusion that the children of Florine L. Henry took under the will of their grandfather and not. as next of kin of their mother.

The judgment should be affirmed, with costs to the guardian ad litem payable out of the fund.

Cullen, Ch. J., Gray, Bartlett, Haight, Martin and Werner, JJ., concur.

Judgment affirmed.