Lewisohn v. Henry , 87 N.Y.S. 325 ( 1904 )

Laughlin, J.:

The executors were directed by the 7th clause of the will to divide the rest, residue and remainder of the estate of the testator into a number of equal shares, equal in number to-the'number of his children. living at the time of his death and of his deceased children leaving issue surviving him, and to set apart one of such shares for each Surviving child and one for the surviving issue of each deceased child. The executors were then directed to “convey, transfer, deliver and pay over one of such equal shares to the issue ” of each déceased child in equal shares “per stirpes and not' per capita, to whom I give, devise and' bequeath the same accordingly.” Here we find specific provisions with reference to the death of any of the • children of the testator during his lifetime. Grandchildren, surviving the testator, being the issue of a predeceased child, were to take at once without their share being held in trust at all. . Consequently, the disposition of the principal upon the death of a beneficiary made towards the end of the 7th clause of the will,'must have reference to the death of a child and to one occurring subsequent to the death of the testator. The appellants contend that the clause in which this reference to the death of a child is made is unqualified and that it includes a death at any time thereafter. The respondent on the other' hand' claimg. that it only relates to a death of a surviving child after attaining the age of thirty years and that, therefore, the part of the will in which it occurs merely disposes of the remaining half of the separate share set apart for the benefit of the mother of the appellants. This argument proceeds upon the theory that the testator did not contemplate a death of any of his surviving children before attaining the age of thirty years and that, under the rule which favors the vesting of estates, the undivided half which the executors are directed to pay over to each child in installments on arriving at the age of twenty-five and thirty years respectively, vested absolutely in the mother of the appellants upon the death of the testator. If the undivided half of the mother’s share thus set apart and held in trust for her benefit vested absolutely in her as claimed by the respondent, then upon her 'death it was payable to her administrator and the appellants take as her next of kin subject to the interest of their father; but if it did not vest in the mother, the appellants take directly under the will and the. husband and father has no interest. The practical question for decision is, therefore, whether the appellants take as next of kin of their mother or under the will of their grandfather. In this view, if the appellants take under the will it is immaterial whether. the undivided half of the separate trust fund in question vested in the trustees until the time fixed for distribution, or whether it vested in the mother of the appellants subject to be divested upon her death before the distribution period. This depends upon the intent of the testator. We must ascertain his intent by considering all of the provisions of his will. On a casual reading, the punctuation would seem to indicate that the disposition of the trust fund in case of the death of a beneficiary relates to the trust fund remaining in the hands of the trustee after the beneficiary has- attained the age of thirty years, which would be one-half the principal of the share originally. On a closer examination, however, it will be discovered that the will has not been punctuated with any degree of accuracy or even systematically and, therefore, the punctuation is of little value as an aid to/the true construction. Moreover, it is to be borne in mind that punctuation must be disregarded if it is in conflict with the testamentary scheme of the testator as gleaned from the provisions of the will or prevents ascribing to the words employed their ordinary meaning. (Roe v. Vingut, 117 N. Y. 204; Kinkele v. Wilson, 151 id. 269.) ■ There is no express devise or bequest of any of the separate trust funds to any of the surviving children. On the contrary, on the division of the remainder into thesé separate shares, each separate share set apart for the benefit of a surviving child is expressly given, devised and bequeathed to the executors as trustees in trust to collect and receive the rents, issues, income and profits of the real estate and to invest and keep invested the personal property, with power to call in and change the investments from time to time and apply the net income to the use of the child for whose benefit the separate trust is created during life, with a provision that upon the beneficiary arriving at the age of twenty-five years the trustees shall “ convey, transfer, deliver and pay over one equal fourth part of the capital,” and upon ,tlie beneficiary attaining the age of thirty years to pay over in like manner one-third of the remainder. The testator, by repeatedly providing that the income paid to any of his daughters should be free from the debts, control or interference of her husband, and by providing that in the event of the death of any of his children without exercising the power of appointment, the share held in trust for such child should go to his or her issue, if any survive him, and making no provision for a surviving husband or wife, shows quite clearly that he did not intend that the trust fund should vest absolutely in his children until the arrival of the period fixed for distribution, and then only as to the part to be distributed. Until the period for distribution his children were only entitled to the net income, and, therefore, it could be of no personal advantage or benefit to them to have the estate vested in them in the meantime. If any beneficiary having issue desired that any part of the trust fund should go to another or others than his or her issue, the power of appointment was given to otherwise dispose of all or any part of it. Moreover, it was essential for the due performance of the trust that the trustees should be vested with the complete title to the property. We are, therefore, of opinion that the appellants took under the will and not as next of kin of their mother. \

It follows that the judgment should be'modified'in accordance with these views, with costs to the guardian ad litem payable out of the fund.

Van Brunt, P. J., Patterson and Hatch, JJ., concurred.