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Court Reviews Will Provisions


Probate Lawyers saidiIn this Probate case, Decedent died on January 7, 1881, leaving a last will and testament, the third and seventh clauses of which are as follows: ‘Third. I desire to make ample provision for the support and maintenance of my said wife, and, in addition to what I have above given, I order and direct that my executors, before paying the legacies hereinafter mentioned, do set apart of my estate the sum of one hundred thousand dollars, and keep the same invested and out at interest, and that they apply the interest or income therefrom to the use of my said wife, in half yearly payments, or oftener, if convenient, during the term of her natural life; and that from and after her death they pay over the said sum of one hundred thousand dollars to our adopted son, if he shall then have arrived at the age of twenty-eight years; but if at the decease of my wife he shall not have arrived at the age of twenty-eight years, then my executors are directed to keep the same invested until he shall have arrived at that age, and that they apply the interest or income to his use, and on his arrival at the age of twenty-eight years the said principal and the accumulated interest (if any) is to be paid to him; but if my said adopted son shall die before he arrives at the age of twenty-eight years, and not leaving lawful issue him surviving, then the said sum of one hundred thousand dollars shall be divided as follows, and I do give and bequeath the same accordingly.

An Estate Lawyer said it was held by the surrogate, and upon appeal by the supreme court, that the heir took a vested remainder in the $100,000 which the executors were directed to set apart and hold for the benefit of the widow during her life, and that he took it by virtue of the language contained in the third clause of the will; that, therefore, the testator did not die intestate as to any portion of his estate; and that his next of kin were not entitled to any hearing upon the accounting. Without determining whether or not the courts below were right in their construction of the third clause of the will, we have no reason to doubt that he took a vested interest in remainder in the $100,000 under the residuary clause. It is clear that the testator did not intend to die intestate as to any portion of his estate. He had taken particular care as to the dispositions made in the prior clauses of the will, and it is true that in several of them he provided distinctly that in certain contingencies the gifts should become part of his residuary estate, and that he made no such provision in reference to the $100,000. But we do not deem that circumstance of much importance.

Nassau County Probate Lawyers said in this case the residuary estate was large, and no direction was given in the will for the disposition of the income thereof until the heir reached the age of 28 years; and the next of kin of the testator, therefore, claim that such income was undisposed of, and that they were entitled to the same. We think the disposition of the income is controlled by the provisions of the Revised Statutes, which provides that ‘when, in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.’ There was no direction whatever for the accumulation of the income.

A Staten Island Probate Lawyer said that was undisposed of, and the heir was presumptively entitled to the next eventual estate, and it was therefore payable to him as it accrued after the death of the testator. The provision of the Revised Statutes strictly applies only to the rents and profits of real estate, but, by analogy, the same rule should probably be applied to the income of personal estate, but, so faras the residuary estate was personal, its income belonged to the heir as the owner of the corpus thereof, and, not being otherwise disposed of, was payable to him as it accrued. It would seem to be a reasonable rule that such an owner should have the income of his own property. We are therefore of opinion that the judgment should be affirmed, with costs. All concur.

If you are a party who was affected by reason of a will of a deceased individual, don’t hesitate to consult our Kings County Will Contest Attorneys here in Stephen Bilkis and associates, we will inform you of your rights. For drafting of wills, our Kings County Estate Lawyers are always here for you.

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