Opinion
December 13, 1927.
Waldron K. Post, for the plaintiff.
Leon R. Jillson, for the defendants Julian Strode and Frederick Page Cutting.
This is an action by the plaintiff, as executor and testamentary trustee, for a judicial settlement of its account, a construction of the will and instructions as to the proper disposition of the property in its hands. It now moves for final judgment in respect to the items mentioned, and the one question to be determined is, who is entitled to the residue of the corpus of the trust estate. The testatrix made the following provisions as to income: Her daughter Isabella was to receive income for her maintenance, and any surplus remaining was to be paid to Mary Nelson Paterson. If the latter survived the daughter, she was to receive the entire income for life. Upon the death of both, the income was to go to the defendant Frederick Page Cutting, the son of the testatrix, and if he did not survive them, the trust fund was to be paid over to his children. In case of the son's predecease without issue, the trust fund was to be divided among three charitable institutions, which have been served with process but failed to answer.
Defendant Cutting seeks an adjudication to the effect that he is entitled to the corpus together with any unexpended accumulations of income. The testatrix was very careful in specifically providing for a number of contingencies, but unfortunately omitted consideration of the very situation which has arisen — the death of the two life beneficiaries and the survival of her son without issue. There is no difficulty, of course, in deciding that he is entitled to the entire income. But if he has a present right to the corpus as well, then the trust of necessity must terminate, and the testamentary trustee be relieved of its charge. It is indeed significant that the testatrix failed to mention the life limitation in providing that the income should be paid to her son after the death of the other life beneficiaries. Hence, what is said by Mr. Justice LAUGHLIN in Matter of Goldmark ( 186 A.D. 447, 451) is wholly applicable in construing the intention of the testatrix: "If he intended to give Ada Helen a life estate only, it is a reasonable inference that he would have limited her estate to one `during her life' as he had done with respect to the estate given to Mrs. Hackett. It is a well-settled rule both in this jurisdiction and in England that a gift of income of property without limitation with respect to the time of enjoyment with no other disposition of the corpus is intended as a gift of the corpus. ( Hatch v. Bassett, 52 N.Y. 362; Locke v. Farmers' Loan Trust Company, 140 id. 146; Tabernacle Church v. Fifth Avenue Church, 60 A.D. 327; Matter of Dibble, 76 Misc. 413, and English authorities therein cited.) Under this general rule, the will must be construed as giving the remainder to the appellant, Helen, absolutely upon the death of Mrs. Hackett."
The English authorities which adopt this rule are entirely pertinent, because the testatrix was held to be a resident of England, and the trust estate consists of personal property; the provisions of the trust must, therefore, be construed according to the laws of England. The rule would be absolutely decisive were it not for the provision that in the event of defendant's predeceasing the other life beneficiaries without leaving issue, the trust fund was to be paid over to certain specified charities. The specific contingency which entitled these foundations to the property has not occurred, and they cannot be in any proper position to make demand in view of the legal construction of the testatrix's intention to vest the property in her son absolutely upon the death of the other life annuitants.
Judgment is, therefore, directed in conformity with this opinion. The plaintiff will submit a decision and decree on notice to defendant Cutting and compute its commissions as upon a termination of the trust.