Opinion
January 10, 1940.
Appeal from Surrogate's Court of Albany County.
The surviving husband of Mary Elizabeth Schoeffler has appealed from a decree of the Surrogate's Court of Albany County which adjudged that he is not one of the heirs of his wife within the meaning of clause Eighth of the last will and testament of George Moffitt, the wife's father, who died on June 11, 1935, leaving a last will and testament, bearing date of June 18, 1928, which was probated in the Albany County Surrogate's Court on June 1, 1935.
Clause Eighth of that will reads as follows: " Eighth: I hereby devise to the New York State National Bank, Albany, New York, in trust for my daughter, Mary Elizabeth Schoeffler, premises No. 664 Myrtle Avenue in the city of Albany, New York. My said daughter is to have the right to occupy one of the flats of the two-flat house now on said premises. Said real estate is not to be sold by my trustee without the consent of my daughter. Likewise, I give and bequeath to my said trustee, in trust for my said daughter, Mary Elizabeth Schoeffler, the sum of Ten Thousand Dollars ($10,000) in cash. Likewise I give, devise and bequeath to my said trustee, in trust for my said daughter, Mary Elizabeth Schoeffler, one half of the remainder of my estate mentioned and described in the `Ninth' paragraph of this will. I direct my said trustee to collect the rent and income from said premises and from said trust fund, and to pay over to my said daughter the net income derived therefrom less the taxes, assessments and repairs and other necessary expenses in connection with said real estate and trust fund. Upon the death of my said daughter, I give, devise and bequeath the principal of said trust fund, embracing all of the items heretofore mentioned in this paragraph and including said real estate, if not heretofore converted into cash, and the proceeds thereof if converted into cash, to the heirs of my daughter, Mary Elizabeth Schoeffler, per stirpes."
Appellant's wife died on November 3, 1938, survived by him and by their four children. All these children were living at the time of the death of testator and no other children were born to appellant and his wife. It is appellant's contention that under section 47-c of the Decedent Estate Law he must be deemed to be one of the distributees of his deceased wife and hence entitled to a portion of the corpus of the trust estate.
The remainders devised and bequeathed by clause Eighth of the will were not contingent during the life of testator's daughter but vested immediately upon his death and consequently appellant is not entitled to share in this fund. ( Matter of Chalmers, 238 App. Div. 672; affd., 264 N.Y. 239.)
Decree affirmed, with costs to all parties filing briefs payable out of the estate.
Crapser, Heffernan and Schenck, JJ., concur; Bliss, J., dissents, in an opinion, in which Hill, P.J., concurs.
The heirs of Mary Elizabeth Schoeffler, the daughter of the testator, must be determined as of her death on November 3, 1938. "The problem is not when the estate vested, but when the estate vested absolutely. The point of time which fixes the ascertainment of the class described and the vesting of their interests is the one to which we look in defining the class." ( Matter of Chalmers, 264 N.Y. 239.) "The testator provided that, upon the death of his son without descendants, the trustees should pay the corpus of the trust to the `next of kin' of the son `according to the laws of the State of New York.' The gift was to a definitely defined class whose membership as well as the extent and quality of their interest were to be determined by the laws in force defining membership in that class at the time of the son's death." ( Matter of Waring, 275 N.Y. 6. See, also, New York Life Insurance Trust Co. v. Winthrop, 237 N.Y. 93.)
In order to determine the membership of the class of heirs at the daughter's death, resort must be had to the Statutes of Distribution then in force. According to section 83, subdivision 1, of the Decedent Estate Law, her intestate property would have passed to her surviving husband and children and the children's representatives if any of them had died before their mother. At the same time section 47-c of the Decedent Estate Law provided that the term "heirs" when used in a will should be construed to mean the distributees, including the surviving spouse, unless the will expressly or impliedly declared otherwise. Consequently the provision in the Eighth clause of the will for the benefit of "the heirs of my daughter, Mary Elizabeth Schoeffler, per stirpes" includes the surviving husband unless it can be said that the words " per stirpes" are an express or implied declaration to the contrary.
There is nothing inconsistent between the inclusion of the surviving spouse as an heir of the daughter and the use of the words " per stirpes." If these words had been left out of the will entirely, the representatives of any children who had died before their mother would still have taken under the will because subdivision 1 of section 83 of the Decedent Estate Law includes the representatives of any such predeceased children among the distributees. These words merely define a method of distribution. Under this will the result is the same, whether the words " per stirpes" are included or not. They never became effective because the husband and the four children of Mary Elizabeth Schoeffler were all living at the time of her death. Therefore, the formula of distribution by representation has no relevancy here.
This same question was up in Irvin v. Brown ( 160 S.C. 374; 158 S.E. 733). There the property was directed, upon the death of a life tenant, to be divided one-third "to the then living heirs of my wife per sturpes." After the death of the testator the wife remarried and upon her death the question was whether her surviving spouse should take under the above-quoted portion of the will. After calling attention to the statutes which included the surviving husband as an heir, the court said: "It is clear, therefore, that the husband will take, along with the other heirs, as designated by the statute, unless, as contended by respondents, the use of the words ` per sturpes' excludes him. But by the use of that term, the testator did not mean to identify or name the devisees — he had already done that — but to prescribe the manner in which they should take; whatever may have been his intention, however, the term ` per sturpes' as used by him, is as above indicated, meaningless, for the reasons that it is not a word of purchase, and, under the facts of this case, has no application to the distribution of the property among those entitled to take."
The statutes, as they stood at the time of the death of the daughter, specifically included the husband. It cannot, in any sense, be said that the use of the words " per stirpes" in this will indicates that he was to be excluded.
I, therefore, dissent and vote to reverse.
Hill, P.J., concurs with Bliss, J.