This is a proceeding for the probate of the will of the deceased. From a decree of the Appellate Division, affirming a decree of the Surrogate’s Court admitting the will and a codicil thereto to probate and construing the provisions thereof, and others appeal. Judgment modified.
The Appellate Division has affirmed a decree (121 N. Y. Supp. 100) of the surrogate of Kings County, which admitted to probate the will of the deceased, and which construed certain of its provisions. It consisted of two instruments, a will and a codicil, both of which were wholly written by the testator and were executed a few years before his death. The testator died April 9, 1909, unmarried and leaving no descendants. The will was executed in 1899. By its first and second articles the testator gave to his nieces respectively, legacies of $75,000 and $50,000. He directed that the two legacies should be held in trust, and that ‘the income shall be paid only to said legatees respectively and an amount of ten thousand dollars ($10,000) of the principal may be paid to each of them if they so elect when they attain the age of 30 years, to purchase and furnish a home.
The remainder of their respective legacies shall remain in trust and in case of the death of either of them without issue, before the death of their Aunt, legatee under Art. IV herein, then the share of such decedent shall in such event revert to her the said aunt. And in case either said nieces should die without issue subsequently to the death of their Aunt the said and prior to the death of their grandmother then in such case their respective shares shall in like manner revert to their grandmother.’ Article 3 gave to his brother, a plantation in Louisiana. By article 4 the testator gave to his sister, known in the family as a legacy of $125,000, to be held in trust ‘and the income thereof to be paid to herself only, with this proviso however that she may if she wish draw not exceeding Ten Thousand dollars ($10,000) with which to purchase and furnish a home for herself. In case of her death without issue and prior to that of her mother, all her interest herein shall revert to her mother.’ He also gave to her all his ‘interest in and to the estate’ of his mother. By article 6 the testator appoints his mother his ‘residuary legatee, the amount to be placed in trust as herein provided in Art. VIII, for her sole benefit, and the income come thereof to be paid to her. At her death, the principal and any accumulated income there may be shall be divided pro rata between the legatees named in articles I, II, and IV herein respectively upon the basis of their respective legacies herein and to be subject to the same trust restrictions stated herein appertaining to their several legacies hereunder.’ By article 8 the testator appointed the Union Trust Company of the city of New York as the trustee for the trusts in his will and as the executor thereof. A year later the testator executed the codicil. By that instrument he, first revoked the legacies given in article 4 of the will to his sister and substituted in place thereof the sum of ‘$25,000, SUBJECT TO ALL THE CONDITIONS And terms as expressed in said art. iv, with this exception to wit: that the sum of $2,500, instead of ten thousand dollars, be allowed her out of said amount for purchase of a home for herself if she so elects.’ Next he bequeathed to his sister, the sum of $35,000 and to his brother, the sum of $10,000, and then provided as follow: ‘And I hereby make these two legatees, upon the death of my mother, pro rata residuary legatees under the terms and conditions as set forth in Art. VI herein, as additional residuary legatees. The above legacy to his brother is in addition to the one in his favor under Art. III herein.’
The contents of the will and codicil have been sufficiently referred to for the present purpose. When they became operative at the testator’s death, his mother and the brother and sister mentioned in the codicil had been dead several years. He left an estate of upwards of $2,000,000, and his next of kin consisted in two sisters and certain nieces and nephews. While this will is not always well expressed, and indicates that the testator was not advised by counsel in framing its provisions, his intention is sufficiently apparent. It has been questioned and construed with respect to the validity of the trusts and with respect to the effect of the provisions of the codicil upon the division of the residuary estate. By the principal instrument the intention of the testator was to make provision for his two nieces for his sister, and for his mother. He placed his gifts to them in trust, as to each, and each trust terminated at the death of the particular beneficiary. The trustee was to hold each legacy and the residuary estate as separate trusts, subject as to testator’s sister and nieces to the right to withdraw $10,000 for the purchase of a home. The principal of the trusts for his nieces, in case either died without issue, was to go to their Aunt; or, if she should have died, to their grandmother. In case of the death without issue of his sister, her mother was to receive the trust fund. While a gift of the principal of the trust to children of a beneficiary is not expressed, it arises by implication. The testator, though apparently making no provision for the contingency of issue, as by a gift in words to such, nevertheless only gives the remainder to others in the case of a beneficiary’s death without issue. No remainder man could take except in that event. He will be deemed, therefore, to have intended the trust fund to go primarily to the children, if any there should be. They would take an estate by implication.
Some criticism is made, by way of argument, upon the use of the word ‘share’ by the testator, when directing the disposition of the trust fund upon the death of a niece. It is suggested that that indicates a gift only of the beneficiary’s share of the trust income and that the trust continues as to the principal; but that proposition is untenable. It is very clear that the trust funds were not to be held in solido, but in several trusts. They are so treated in the will, and each terminated at the death of the beneficiary. The word ‘share,’ however inapt, had reference to the principal of the trust. It referred to the portion of his estate which the testator had set apart, and, if susceptible of two meanings, that one will be given which will support the testamentary provision. Nor is there any difficulty with respect to the trusts in the residuary estate created by article 6. Under the original will, at the death of the testator’s mother, who was to have the use of the residuary estate for life, it was to be divided between the two nieces and the sister of the testator, pro rata, ‘upon the basis of their respective legacies and to be subject to the same trust restrictions appertaining to their special legacies.’ The effect of this disposition of the residuary estate by the testator was to create additional and separate trusts for each niece and for the sister in shares therein, which would be defined by ascertaining the proportion which the amount of each legacy bore to the aggregate of the three legacies. For instance, under the will, before it was affected by the codicil, the residuary estate would be divided into fractional parts, represented in niece case by 75/250, or 3/10, in the other niece case by 50/250, or 1/5, and in sister’s case by 125/250, or 1/2. New trusts were created in these shares, each of which terminated upon the death of the beneficiary.
The court believe that the trusts created by the will were valid and that they effected no illegal suspension of the power of alienation, either as to the gifts of the legacies, or as to the disposition of the residuary estate. That every contingency was not anticipated by the testator, in providing for the death of a beneficiary, is no reason for holding the trust invalid. It was sufficient for the surrogate, in passing upon the objections made to the will, to determine whether trusts had been created, which were valid under our statutes. What might become of the remainder upon the death of a beneficiary, in a contingency not foreseen by the testator, was a question which was not required to be decided in advance by the surrogate. If it should ever arise, it will be then time enough to determine it.
In considering the effect of the codicil, we do not look to what happened, when it became operative. We seek for what the testator intended by it when arranging the disposition of his residuary estate. Will and codicil are to be read together, as one instrument, and, so read, we observe that the gift of the testator’s residuary estate was not to a class; for it was to certain persons named, in shares which were not equal, but which were definite and not dependent for their amounts upon the number who should survive.
The intention of the testator in disposing of his residuary estate is to be ascertained not by what occurred long after the execution of his will, but by what was, apparently, or presumably, in his contemplation, at the time he was making it. A testator is presumed to speak as of the time of executing his will and to base his calculations upon his dispositions taking effect. The difficulty here arises in the testator’s having neglected to make provision in anticipation of the failure of his sister and his brother to survive him, or to change his will after their deaths. This is not a case where the presumption against intestacy is available. It is simply the case of a contingency not provided for and whose happening has left portions of the residuary estate undisposed of.
Although the brother’s legacy in the codicil was given in addition to the devise in the original will of the plantation, I do not think that his share of the residuary estate should be increased by the appraised value of the latter. I incline to the view that the prorating of his and the sister’s shares with the other legacies could never have been intended except upon the basis of the two pecuniary legacies just bequeathed to them. The use of the words ‘pro rata’ was with obvious reference to them.
The court reach the conclusion that, in so far as the decree of the surrogate admitted the will to probate and upheld the validity of the trusts created, it adjudged correctly; but in so far as it adjudged that the residuary estate was divisible among the testator’s two nieces and his sister, as surviving legatees, it was erroneous. I advise, therefore, that the decree of the surrogate and the order of the Appellate Division affirming the same be modified, so as that it shall be adjudged, as the construction of this will, that the testator died intestate as to the shares of his residuary estate given to his sister and to his brother, and that the said shares, representing 45/195 thereof, are divisible among his heirs and next of kin, according to the statute in such cases, and, as so modified, that the said order and decree be affirmed, with costs in this court to all parties appearing by counsel, to be paid out of the estate.
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