Opinion
December 30, 1910.
William H. Hamilton, for the appellant.
Charles H. Beckett, Edward L. Frost and William H. Robbins, for the respondents.
The plaintiff, claiming to have a beneficial life estate in the income of the three trusts, and to be entitled to the remainder in the whole of the principal held in trust, has released to herself her right as beneficiary, and now claims that the trust estate has become merged in the remainder pursuant to chapter 452 of the Laws of 1893. It is unnecessary to consider the effect of the release, for we are of the opinion that the intention of the testatrix to suspend the vesting of the remainders until the death of the life beneficiary is unmistakable.
It is to be observed that there was no immediate gift of the remainder in either case, but only a direction to the trustees to pay and divide in the future with respect to the trusts of the personal property, and to convey in the future with respect to the trust of the real estate. Of course, rules of construction will not override an intention otherwise plainly manifested. But there is nothing within the four corners of this will to take this case out of the general rule; on the contrary, there is much to show the intention of the testatrix to postpone the vesting of the remainder independently of said rule of construction. The trust of the $5,000 in the 5th clause was to pay the income to the sister during her life, then to the daughter, this plaintiff, during her life. Upon the death of the daughter the principal sum was to be divided and paid to the issue of the daughter or, failing such issue, to the next of kin of the testatrix. When the will was made the plaintiff's daughter May Florence was living and, even when the testatrix died, it could not be said that there was no possibility of the daughter having other issue. The principal of the trust, created by the first half of the 7th clause, was disposed of in the same manner. In all probability the ulterior bequest to the next of kin of the testatrix was considered by her, if at all, only as a remote possibility. She intended to provide for the daughter and the daughter's issue by creating a trust to endure during the life of the daughter, the principal to be divided upon the latter's death among such issue. If an intention to suspend the vesting of a remainder during the term of a trust estate was ever manifested, such purpose was plainly manifested by this testatrix. We cannot remake the will, simply because May Florence happened to die before the death of the testatrix, or because it is now, fifteen years after the death of the testatrix, reasonably certain that the plaintiff will not leave issue. No doubt technically, as the appellant contends, the plaintiff is the sole next of kin of the testatrix. But surely the testatrix did not intend to give to her a remainder limited upon her own life. The ulterior bequest then cannot go to those who will technically be "next of kin" of the testatrix, but in providing for that remote contingency the testatrix did not have the particular individuals in mind. Certainly she meant persons who would answer to that description after the death of the daughter, and the expression must be so construed.
With respect to the real estate, the remainder was directed to be conveyed to the granddaughter, May Florence, if living; if not, to the issue of the latter; and, if none, to the heirs at law at the testatrix. May Florence, having died without issue before the death of the testatrix, it was certain that upon the death of the latter the ulterior devise to the heirs at law of the testatrix would take effect, and this plaintiff was the sole heir at law. If the testatrix intended the plaintiff in any event to take the remainder, we have a case of a remainder to a person limited upon her own life, and surely that was not intended. The testatrix manifested an intention, as plainly as words could do it, to create a trust during the life of the plaintiff which should be beyond the power of destruction. This is not a case merely of postponing the distribution to let in an intermediate life estate, as was the case of Matter of Embree ( 9 App. Div. 602; affd. On opinion below, 154 N.Y. 778), which is chiefly relied upon by the appellant. It is to be noted that in that case the remainder was not limited upon the life of the remaindermen. The sole question is whether the testatrix intended that the remainder should vest upon her death. We think it plain that she did not and we cannot hold otherwise from the mere fact that the plaintiff is now the sole heir at law of the testatrix.
If there could be any doubt as to the construction of the 6th clause, that doubt vanishes at once upon construing it in connection with the 5th and 7th, for it thus appears that a single purpose dominated the act of the testatrix, i.e., to create a trust of both the real and personal property to endure during the life of the plaintiff and to suspend vesting of the remainder until the death of the life beneficiary.
While the will speaks from the death of the testatrix, we gather her intention from the situation when the will was made. It is unfortunate that she did not change her will after the death of May Florence. But she may have counted on the birth of other issue of her daughter. Before her death she was adjudged incompetent and how long she had been in that condition does not appear. At any rate, it is useless to speculate upon the reasons for not changing the will. Doubtless, if the testatrix had anticipated the situation now existing, she would have made a different will. But we cannot supply that omission.
The Court of Appeals has recently held that a bequest was contingent in a case where the language of the will was, "upon the death of my said son I give, devise and bequeath the said share to my unmarried daughters in equal shares," because such was deemed to have been the testamentary intention. ( Robinson v. Martin, 200 N.Y. 159.) In this case, the testamentary intention appears to us to be too plain to admit of argument.
We think the allowances of counsel fees in this case were excessive. The question is not before us, as that part of the judgment is not appealed from. However, the matter of costs upon this appeal is within our discretion and because of the excessiveness of the allowances already made, no costs will be allowed to either party on this appeal.
The judgment is affirmed, without costs.
INGRAHAM, P.J., CLARKE, SCOTT and DOWLING, JJ., concurred.
Judgment affirmed, without costs.