Stevens v. Miller

2 Dem. Sur. 597

• Court: New York Surrogate's Court
• Decided: February 15, 1884
• Status: Published

Opinion

The Surrogate.

The question here to be determined is who is entitled to the surplus money, or what disposition is to be made, of it, under the will.

I think the absolute devise, contained in the first provision of the second clause, to testator’s sons is modified by the subsequent provisions of the same clause. It would seem that the testator only intended to give a life estate to the sons; then a like estate to their respective widows, with remainder to their heirs at law. But the second intended life estates (to the respective widows) appear to be void, for the reason that the widow which either son might leave could be a person not in being at the death of the testator; and the limitation over upon their death dependent thereon would also be void, and the testator will have died intestate as to the two thirds, and the same will, therefore, descend to his hens at law, whoever they may be, at the death of each life tenant (Schettler v. Smith, 41 N. Y., 328).

As no control over the real estate, or the proceeds thereof, is given to the executors by the will, the fund must, after paying Mrs. Miller her share, remain in the hands of the county treasurer, to be invested in pursuance of the provisions of §§ 3792 and 2796 of the Code, for the benefit of the sons for life, and, at their death, to be paid to the heirs at law of the testator. Decreed accordingly.