Opinion
October, 1922.
Remsen Parsons, for substituted trustee.
Charles W.G. Baiter, for William L. Burtis.
Crawford Harris, for Catherine L. Burtis, widow of Charles E. Burtis.
Upon this accounting a question arises as to the construction of paragraph 19 of the will, which is as follows:
"I hereby give and bequeath unto my daughter Harriet A. Burtis for and during her life time the use, income and profits to be derived from the other one equal undivided one-half part of all the rest, residue and remainder of my real and personal estate and property not hereinabove specifically and expressly bequeathed and disposed of, and upon the death of my said daughter leaving issue her surviving, then the principal sum derived from the said one-half of the said rest, residue and remainder of my real and personal estate to go to her children in equal shares and portions on their respectively attaining the age of twenty-one years, and the said principal sum to be derived from the said one-half of the said rest, residue and remainder of my real and personal estate, I hereby direct my executors to invest and keep properly invested on bond and mortgage on good improved and unincumbered real estate or other good and safe securities and to pay the interest to be derived therefrom unto my said daughter Harriet A. Burtis semi-annually after the sale of my real estate and for and during her life time."
The testator left two children. The other half of his estate was given outright to a son, Nathaniel B. Valentine. The will does not contain a general residuary paragraph.
At the time of the execution of the will, October 2, 1880, the testator's daughter, Harriet A. Burtis, was over the age of forty-two years. At that time she had two children, William L. Burtis, then aged sixteen years, and Charles E. Burtis, then aged eight years. The testator died eight days after executing the will. Harriet A. Burtis, life beneficiary in one-half the property, is now deceased. Her son Charles E. Burtis died during the trust term, intestate, over the age of twenty-one years, without issue, leaving a widow, Catherine L. Burtis, him surviving. William L. Burtis, the other son, survives, and contends that the gift was contingent and did not vest until the death of Harriet A. Burtis, and that the entire net proceeds of the trust fund should be paid over to him. The main purpose is to ascertain the intention of the testator. Counsel for William L. Burtis relies upon Matter of Baer, 147 N.Y. 348, 353, 355; Matter of Buechner, 226 id. 440, 443; Matter of Kissam, 115 Misc. 724, and kindred cases, to support the theory of payment to those living at the death of the life beneficiary. In Matter of Baer the gift was contingent upon survivorship. In the Matter of Buechner case the will restricts the division to the number of children living at the division. In Matter of Kissam the gift was to the children living at the time of the death of the daughter. The remainder interests were, therefore, contingent and not vested. In Matter of McKim, 115 Misc. 720, the principal of a quarter part was to be divided "among all my surviving grandchildren." The divide and pay over rule of construction is merely a canon of construction and is subject to the expressed intent of the testator. This rule has been severely criticized and has been held not to apply where it would disinherit any one of testator's blood. Matter of Gee, 201 A.D. 540.
The draftsman of the will in the instant case evidently confused the legal meaning of "issue" and the legal meaning of "children," because he says: "Upon the death of my said daughter, leaving issue her surviving," then the principal shall "go to her children in equal shares and portions on their respectively attaining the age of twenty-one years." Matter of Pulis, 220 N.Y. 196; Petry v. Petry, 186 A.D. 738; affd., 227 N.Y. 621; Whitehead v. Ginsburg, 197 A.D. 266, 270; Matter of Farmers' Loan Trust Co., 193 id. 80; 231 N.Y. 50; Matter of Schuster, 111 Misc. 534, 540. The will does not say, if the issue survives the daughter then pay over to such issue in equal shares. The words "leaving issue her surviving," unless held to mean children surviving are meaningless, and if deleted clearly convey the intent of the testator that upon the death of the daughter the one-half of the estate shall go to her children in equal shares and portions upon their reaching their majority. Equality of distribution enters into the division. No provision is made for a substituted gift, or are there words of survivorship. The case of Fulton Trust Co. v. Phillips, 218 N.Y. 573, 581, very much resembles the instant case. There the gift was for the life of Mrs. Newton, and after her decease to her children until they respectively attained the age of twenty-one years, and that upon attaining that age, the principal shall be paid to them. In that case there is no provision in the will for a gift over, or any words of survivorship relating to the principal gift. The court said: "The absence of a gift over in the alternative and of any words of survivorship in this connection has a special significance." In the dissent of Chief Judge Cullen in Dickerson v. Sheehy, 209 N.Y. 592, the decisions as to vesting of estates at death of the testator are reviewed. The testator created an estate for his daughter in one-half of his property, and I think that the testator intended to vest his estate at his death in the children of his daughter, subject to the trust estate, with the enjoyment thereof postponed until they arrived at legal majority. The decision may well rest upon the principle set forth in Goebel v. Wolf, 113 N.Y. 405, 415: "This construction [ i.e., that the gift was vested] also prevents the disinheritance of issue of any child who may marry and die before the expiration of the trust period, a consequence which no one can doubt the testator never intended." This principle was the controlling force in Chief Judge Cullen's opinion in Cammann v. Bailey, 210 N.Y. 19, 32; Connolly v. O'Brien, 166 id. 406; Matter of Embree, 9 A.D. 602; affd., 154 N.Y. 778; Fulton Trust Co. v. Phillips, supra; Matter of Ossman v. Von Roemer, 221 N.Y. 381; United States Trust Co. v. Taylor, 193 A.D. 153; affd., 232 N.Y. 609; Matter of Tienken, 131 id. 391; Kelso v. Lorillard, 85 id. 177; Matter of Gee, supra.
In the event, however, that the vesting was postponed to the attainment of the majority of the grandchildren ( Matter of Lamb, 182 A.D. 180, 186; affd., 224 N.Y. 577), it can be said that the two grandsons reached the age of twenty-one years within the lifetime of their mother. Brooklyn Trust Co. v. Phillips, 134 A.D. 697; affd., 201 N.Y. 561; Dickerson v. Sheehy, 156 A.D. 101; affd., 209 N.Y. 592.
Consequently, William L. Burtis is entitled to one-half of this portion of his grandfather's estate, and the other half part passes to those who take under Charles E. Burtis, deceased.
Decreed accordingly.