Opinion
December Term, 1901.
George S. Hamlin and Andrew M. Clute for the appellants.
Thomas G. Barry, guardian ad litem of the respondents, Eleanor Moloughney and others.
The only question presented upon this appeal is the correctness of the construction placed upon the 2d and 3d paragraphs of Michael Moloughney's will by the learned referee whose report was confirmed by the surrogate.
These paragraphs read as follows:
"II. I give, devise and bequeath all the rest, residue and remainder of my real and personal property and estate of what nature or kind soever and wheresoever situated, whether now owned or hereafter acquired by me, and of which I shall die seized and possessed, to Edward J. Moloughney, Edward F. Moloughney and Michael Moloughney, Jr., my executors hereinafter appointed, or to such of them as shall qualify and take upon themselves the execution of this will, in trust to invest and re-invest the same, to receive the income therefrom and to apply said income to the use of all my children, share and share alike, until my youngest child living at the time of my decease, shall become twenty-one years of age; and when my said youngest child, living at the time of my decease shall have become twenty-one years of age, I give, devise and bequeath the said rest, residue and remainder of my said real and personal estate to all my said children absolutely forever, to be divided between them equally, share and share alike; and I direct my said executors at that time to divide and distribute the same as herein directed.
"III. Should either of my said children die before my decease or after my decease, and before the time above fixed for distribution, and should the child so dying leave issue, then I give, devise and bequeath to such issue of the child so dying, the share of my estate, both of income and principal, to which the parent of such issue would be entitled, if living."
Edward F. Moloughney, one of the testator's eleven children, for whose benefit the trust was created by the 2d paragraph, died during the period of the trust thereby established, leaving him surviving four children. The question is whether upon their parent's death the fee of one-eleventh of the testator's residuary estate immediately vested in these four children in absolute ownership, or whether their share, although it had become vested in interest, remained subject to the trust. It has been held in the court below that the trust ceased as to one-eleventh upon their father's death, and that thereupon they took such share absolutely.
The argument in favor of this construction does not appear to me to be as convincing as that in support of the contrary view.
I think it tolerably clear that the 3d paragraph of the will was intended to be solely substitutionary in its effect; that is to say, it was designed to place the issue of a deceased child of the testator precisely in the same position as such child had previously occupied in reference to the estate. The issue are to have "the share of my estate, both of income and principal, to which the parent of such issue would be entitled, if living." What is that share? Not, as it seems to me, one-eleventh of the residuary estate in immediate and absolute possession — for the parent was not entitled to that — but a vested interest in one-eleventh, subject to the trust created in the previous paragraph, and to vest in absolute possession at the termination of the trust. The substitutionary gift did not change the character of the estate. It was to remain a trust until the youngest child living at the time of the testator's death should become twenty-one years old. The word then in the 3d paragraph does not indicate to my mind an intention on the part of the testator to adopt a different form of disposition with reference to the issue of his children from that which he had adopted with reference to the children themselves. It seems to be merely an equivalent for the phrase "in that event." On the other hand, the fact that the testator, in the 3d paragraph, is careful to mention income as well as principal, shows that he contemplated a continuance of the trust after the death of one or more of his children, during a period when income should be earned by the trust estate.
Little or no aid can be gained by recourse to the decisions in other will cases for guidance in the construction of such a will as this. Different minds may reasonably differ as to what the testator's intention really was. In addition to the reasons already given for believing that he did not intend the trust to terminate as to the share of any child, merely by reason of the death of that child and the gift over to his issue, I may suggest the improbability that he meant to give property absolutely to his grandchildren, in the event of their parent's death, while refusing to let any of his own children have absolute possession or control of their respective shares until the youngest of the eleven should have attained the age of twenty-one years.
I advise that the surrogate's decree be modified so as to direct that the share of the respondents be held for them by the appellants, subject to the trust established in the 2d paragraph of the will, and be distributed at the termination of said trust.
GOODRICH, P.J., WOODWARD, HIRSCHBERG and SEWELL, JJ., concurred.
Decree of Surrogate's Court of Kings county modified, without costs, in accordance with the opinion of BARTLETT, J.