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Case Reviews Rules of Will Construction


In this probate case, a trustee bank, requests for the construction of an article of the will of herein decedent.

A Kings County Probate Lawyer said that decedent died in 1949 leaving a will which he had executed in 1919, some 30 years before his death which was duly admitted to probate. In Article THIRD, the will created a trust for the life income benefit of testator’s wife. Upon her death, the principal was to be paid to son and if he should predecease to his issue. In fact, the son predeceased the testator himself as well as his mother the income beneficiary without issue. It that contingency, the will directed the Trustee– ‘to pay over, transfer and deliver the principal of the trust fund to and among my next of kin in equal shares but Per stirpes and not Per capita.’

The direction is clearly to distribute the principal among Testator’s next of kin. The issue is–‘as of what date are the next of kin to be determined (1) 1919 the date of execution of the will; (2) 1949 the date of testator’s death or (3) 1975 the date of death of the income beneficiary, testator’s wife?’

In 1919 the date of execution of the will, testator’s sole ‘next of kin’ was his son. A brother and a sister, then living were not next of kin while son was living. In 1919, a surviving spouse was not ‘next of kin’. From 1930 to 1938 there is a gray area made such by the decision in a case. Noting that the case may have been wrongly decided, the Legislature upon recommendation of a Commission. Section 47–c, (like present EPTL 2–1.1) provided, that unless a contrary intent is expressed in a will, the term ‘next of kin’ (also ‘heirs’ and ‘heirs at law’) shall include all distributees entitled to take in intestacy under the statute of descent and distribution. Section 47–c expressly included ‘a surviving spouse’.

In 1949, the date of testator’s death, son Willard was already dead. Testator’s ‘next of kin’ included his widow by express provision of then effective section 47–c. It also included brother Arthur and sister Edith, then living, since under the statute of descent and distribution then in effect, they shared with the surviving spouse when there were no issue surviving.

Generally a will speaks as of the date of death of testator. This is especially true when terms used in the will are referable to the statute of descent and distribution which testator is presumed to know may be changed by the Legislature at any time. Thus, as next discussed, unless testator intended that his ‘next of kin’ be determined at the time of the death of the income beneficiary, testator’s next of kin at the date of His death were his wife, his brother and his sister.

The fact that the life income beneficiary, as next of kin, is also a remainderman and that she can never come into possession of her remainder interest is a factor to be considered but standing alone does not preclude the determination that her remainder interest became vested in 1949 at the death of the testator.

If testator intended ‘futurity’–that his next of kin should be determined as of the date of death of the life income beneficiary (1975) then intestacy will result. None of his next of kin survived the income beneficiary. The sister died in 1971 without issue. The brother died in 1974 without issue. The wife died in 1975 without issue. This is the construction requested by the Attorney-General appearing on behalf of the State Comptroller with whom the principal of the trust must then be deposited.

The Court find in the language used no expressed intention by testator that his next of kin were required to survive the income beneficiary.The phrase ‘at the death of my said wife’ and the word ‘then’ (also ‘when’, ‘after’, ‘from’) preceding the dispositi of a remainder limited upon a preceding life income interest, merely indicates the time when possession is to begin; such phrases or words do not impose a condition of survival nor prevent earlier vesting.

In the absence of an expressed condition of survival, we examine the constructional preferences. It is when intention is not readily ascertainable or where testator had no intention at all (which is very likely in this case) that resort is had to constructional preferences. These are not rules of substantive law but merely rules of construction useful in determining what the ordinary testator would have intended if indeed he had given any thought to the disposition under construction.

The court we consider three such rules of construction applicable generally, but as well in this case to determine This testator’s preference. One such rule is discussed and explained by this Court in a case.

When the remaindermen are Named individuals (as distinguished from a class) there exists a strong presumption in favor of vesting and against a condition of survival. Obviously testator expected that his named remainderman would survive to take possession. If a remainderman had survived he could have disposed of his remainder interest as he saw fit. For such reason it is presumed that testator would have no objection to allowing the remainder interest to pass to the named remainderman’s estate to be disposed of as directed in that remainderman’s will or as in intestacy. This is the same reasoning which justifies our anti-lapse statutes.

When the remaindermen are a horizontal class (of equal degree of consanguinity) such as ‘children’, or ‘grandchildren’, or ‘brothers and sisters’, the same rule and reasoning is applied. There is a presumption in favor of vesting and against a condition of survival.

When the remaindermen are a vertical class (more than one generation) such as ‘issue’ or ‘heirs’ or ‘next of kin’, the presumption is against vesting and in favor of a condition of survival. Testator by using a term which includes more than one generation has indicated that his intention has extended beyond a single generation. Thus the use of the term ‘next of kin’ imports futurity and an intention that the remaindermen so designated are required to survive the life income beneficiary.

Closely related to the above, is the situation where a holding that a remainderman was not required to survive, would vest the remainder in the life income beneficiary who would never take possession.

Of course if the life beneficiary is himself the ancestor whose horizontal or vertical class of relatives are the remaindermen, the presumption follows the rules set forth in 1(b) and 1(c) above. However when the testator himself is the ancestor whose class of remaindermen include the life beneficiary, as in the instant case, it is generally presumed that he intended to exclude the income beneficiary from the class and that therefore survivorship was intended.

The third rule, the constructional preference against intestacy–more properly labelled the natural preference for complete disposition–stands on the firmest ground of all. Presumably no testator, who takes the trouble to make a will ever intends that his property shall pass in intestacy. Of course when after exhausting all substitutionary dispositions (as decedent did by designating his son and his son’s issue as remaindermen) he directs disposition of the remainder interest to his next of kin (a vertical class) he is in effect directing that the remainder interest pass (as a final alternative) as if he had died intestate. But his intention extends only so far as to vest the remainder in such next of kin who in fact survive the income beneficiary.

The Court ruled that the will is construed as vesting the remainder interest in his next of kin living at his death but subject to be divested if and only if any of his next of kin survive the life income beneficiary. Since none did survive the trustee is required to pay the principal of the trust equally to the estates of the wife, brother, and sister as set forth in the petition.

If indeed it is testator’s intention which we seek from the direction under consideration And if he were available to express such intention, it is certain that (over the result of deposit with the Comptroller) he would prefer that the principal of the trust be disposed of in accordance with the finding of this Court. The Court therefore finds that this was his actual intention. The will is so construed.

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