Goodwin v. Ingraham , 36 N.Y. Sup. Ct. 221 ( 1883 )

Barnard, P. J.:

The construction put upon the will in question completely deprives the children of the testator of any interest in his property. This result is reached, not by the will of the deceased, but directly in opposition to it. The testator gives $50,000 in trust to his ■children, five in number. This trust is void for the reason that the absolute ownership of the fund is suspended beyond two lives in being at the creation of the trust estate.

The residue of his property is given to his widow “ provided and so long as she shall remain my widow, to have and to hold unto her the said Amelia P. Ingraham, for and during the term aforesaid, with power of distribution as her absolute estate by will or otherwise, provided she shall continue unmarried during the remainder ■of her natural life after my decease.”

The decree throws the $50,000 into the residuum of the estate, .and gives the whole estate as an absolute and unconditional one to the widow.

The first conclusion is erroneous under Kerr v. Dougherty (79. N. Y., 327). In that case the Court of Appeals say • “ the general rule is that in a will of personal property the general residuary clause carries whatever is not otherwise legally disposed of. But this rule does not apply where the bequest is of a residue of a residue, and the first disposition fails.”

It was accordingly held that when certain legacies in the will failed, that augmentation of the residue by the failure did not go to the residuary legatees but devolved as undisposed of.

As to the $50,000, therefore, the same must be distributed as in case of intestacy.

I think the widow did not. take an absolute estate. She had only a life estate and that depended upon her remaining unmarried, and only so long as she remained unmarried, and power to dispose of by will. She can give no title now which will prevent her title from divesting if she hereafter marry again.

The power of disposition by will or otherwise did not enlarge her estate. (Livingston v. Murray, 68 N. Y., 485.) If the power was unexercised the title to the property would pass to those entitled.

The judgment should be modified by declaring that the $50,000 is to be divided as if there was no will and that the widow only takes a life estate in the residue if she remain unmarried during life, and that she takes no estate for a term longer than she remains unmarried.

The allowance to the plaintiffs should not exceed $100, besides taxed costs.

Dykman, J., concurred.