Opinion
April 8, 1921.
Harold Nathan of counsel [ Leventritt, Cook, Nathan Lehman, attorneys], for the appellants executors of Frederick Nathan.
Daniel P. Hays of counsel [ Hays, Hershfield Wolf, attorneys], for the appellant Pennsylvania Company for Insurances on Lives and Granting Annuities.
McCready Sykes of counsel [ Stewart Shearer, attorneys], for the plaintiff, respondent.
Robert E. Samuels of counsel [ Goldsmith, Cohen, Cole Weiss, attorneys], for the respondents Arthur M. Wolff and others.
Lawrence S. Coit of counsel [ Benjamin G. Paskus with him on the brief; Rose Paskus, attorneys], for the respondents Harmon H. Nathan and Julian Nathan.
Sidney B. Cardozo of counsel [ Michael H. Cardozo, Jr., with him on the brief], for the respondent Ernest A. Cardozo, guardian ad litem of Anita Rosalie Cardozo and Michael H. Cardozo.
Walter S. Newhouse, guardian ad litem, for the respondents Alan Hart Nathan and Constance Miriam Nathan.
The facts presenting the issue here for determination are fully stated in the opinion of the Special Term ( 112 Misc. Rep. 502), and with the reasoning and conclusions stated in that opinion I fully agree, and to that opinion I would add only a few considerations as indicating the intent of the testator.
The reference by the testator to the final distribution as to be made according to the laws of the State of New York now in force regulating the distribution of personal property in case of intestacy, would have significance as bearing upon the intention to vest the estate in the heirs living at the time of his death, if it were not for the use of the same expression in the same paragraph with reference to estates which are confessedly future and contingent. Just preceding the clause which presents the question here at issue, in reference to the direction to pay over the fund held in trust for a daughter to her issue if she shall die, that payment is to be made "according to the law of distribution of personal property of intestates now in force in the State of New York." It is not contended by the appellants that the children of those daughters living at the time of the death of the testator took a vested estate, notwithstanding the use of that expression. The same expression is used in a later clause in this same paragraph in reference to the bequest for the benefit of his son Washington, for payment to the lawful issue of his body born unto him by a Hebrew wife, "according to the law of distribution of the personal property of an intestate now in force in the State of New York." His son Washington was not then married, and, confessedly, that estate could not vest at the time of the testator's death. The testator was evidently satisfied with the distribution provided by law at the time that the will was made, and full effect is given to the provision as to the distribution under the laws of the State now in force by holding that he desired distribution to be made in accordance with such a law rather than in accordance with any provision of law which might thereafter be enacted which might provide for a different rule of distribution. Again, the use of the words "give and bequeath" in the clause of the will here for construction, as distinguished from the use of the words "pay over," which precede it in reference to the distribution of the property in case of the death of the daughter, is not without significance. But its significance is to my mind materially impaired by the fact that in the creation of this very trust the testator gives and bequeaths to the trust company the moneys which are the subject of the trust. If these moneys are absolutely given and bequeathed to the trustees, the intention would seem to be indicated that the trustees were to take the entire estate, and that no estate was to vest in any ultimate beneficiaries while the entire estate was thus held by the trustee for the purpose of the trust.
From the cases cited by the Special Term it appears that these words do not necessarily indicate an intention to immediately vest title when applied to estates which are to vest in possession only at a subsequent date. That the gift to his decedents was of the principal of the trust fund, together with unapplied income, is strongly indicative of the intention to give only at a time subsequent to the death of the testator when there would be, as the testator must have thought, unapplied income to pass as part of the gift.
Here the testator left nine children. Fifty years elapsed before the death of Justina Cohen, and some of the children are still living. That the estates are to vest in possession only at such remote periods as must have been contemplated and only upon the double contingency of a child's dying without issue, and also of the death of his widow at the time of the death of the child, the gift to the testator's descendants, in connection with the provisions of the will taken as a whole, would seem to indicate an unmistakable intention on the part of the testator that those descendants were to be ascertained as of the time when their estate would vest in possession, and whether those estates might be deemed contingent or vested and liable to divest by death before that time, those only would be entitled to take who were in the class of descendants upon the happening of the contingency at which their estates were to vest in possession.
The judgment should, therefore, be affirmed, with costs to the respondents presenting briefs out of the fund.
CLARKE, P.J., LAUGHLIN and PAGE, JJ., concur; GREENBAUM, J., dissents.
Judgment affirmed, with costs to respondents presenting briefs out of the fund.