Submission of controversy on an agreed statement of facts between Edith B. Lake as plaintiff and Herbert Ascher as defendant. Judgment for plaintiff.
Isaac W. Goodhue, for plaintiff.
Mark Eisner, for defendant.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and HOUGHTON, JJ.
The controversy arises upon the eleventh clause of the will of Chauncey Kilmer, who died November 1, 1901, leaving a last will and testament dated June 14, 1900, which was duly probated. This clause gave, devised, and bequeathed one-half of the residue of [117 N.Y.S. 466] the estate to testator's executors and trustees in trust for the benefit of his daughter Ann Augusta Lake, directing them to pay the interest or income thereof to her semiannually each year during her life, and then provided as follows:
" Upon the death of my said daughter Ann Augusta Lake, I give, devise and bequeath the said one half of the rest, residue and remainder of my estate together with all accumulations of interest or income arising therefrom, to the children of my grandson, Louis N. Lake, son of my said daughter Ann Augusta Lake, and if there be more than one of such children, to be equally divided between them and to be paid and distributed as follows, my said executors and trustees shall divide said one-half of the rest, residue and remainder of my said estate together with all accumulations of interest or income arising therefrom into parts according to the number of such children of the said Louis N. Lake, and pay and deliver to each of said children one of such parts upon his or her arriving at the age of twenty-five years. From the time of the death of my said daughter, Ann Augusta Lake, my said executors and trustees shall apply to the support, education and maintenance of each of the said children of the said Louis N. Lake, the interest or income of the part above bequeathed to him or her until he or she shall attain the age of twenty-five years, such application of said interest or income to be made by my said executors and trustees personally or under their direction but not through the parents of said children."
Ann Augusta Lake, the daughter of said testator, is still living. Louis N. Lake, son of said daughter, is also living. Edith B. Lake, the plaintiff, is the daughter of said Louis and the granddaughter of said Ann Augusta, and will be 22 years of age next September. Louis N. has had only one other child and she is still living, and would take under the provisions of the said eleventh paragraph of the will.
On February 1, 1909, the plaintiff, Edith B. Lake, and the defendant entered into an agreement whereby the defendant was to purchase a one-fifth part of the interest of this plaintiff in the said estate, and the plaintiff agreed that her said interest, as appears in the said paragraph of the will, would be payable to her on her twenty-fifth birthday, provided that on said day Ann Augusta Lake be then deceased, or, if she be not deceased, then thereafter, upon the death of the said Ann Augusta, the life tenant. The said purchase was to be made and completed on the 24th day of February, 1909. On said day defendant refused to perform on the ground that this plaintiff would not be entitled to receive her interest upon reaching her twenty-fifth birthday if Ann Augusta was then deceased, because the estate would not be distributed as a matter of law until the death of Louis N. Lake, the son of Ann Augusta, and because any children born to the said Louis N. after the death of said Ann Augusta would be entitled to share equally with this plaintiff, and that a difficult question of law was involved.
The questions submitted are as follows: Would the children of Louis N. Lake living at the time of the death of Ann Augusta Lake, the life tenant, share equally in the trust estate? Would any children born to the said Louis N. Lake after the death of said life tenant be excluded from sharing in this estate with those born before the death of the said life tenant? If both these questions are answered in the affirmative, judgment to be rendered for the plaintiff directing the defendant to perform. If in the negative, in favor of the defendant canceling the agreement of purchase.
[117 N.Y.S. 467] I think it is quite clear that both of these questions should be answered in the affirmative. The words are present words of gift:
" Upon the death of my said daughter, *** I give, devise and bequeath *** to the children of my grandson, [and] from the time of the death of my said daughter, *** my said executors shall apply to the support, education and maintenance of each of the said children *** the interest or income *** until he or she shall attain the age of twenty-five years."
The time of distribution of the estate is therefore fixed as at the death of the daughter, and the estate to the grandchildren which up to that time is liable to open to let in after-born children then becomes vested, although the time of personal control of the corpus is postponed until the grandchildren arrive at the age of 25 years, and, if the children have not arrived at the age of 25 at the death of the life tenant, nevertheless, the income is to be disposed of for their benefit. It is not possible to construe the plain language of this will so that this estate should be open for 40 or 50 years until the death of the son.
In Ellison v. Airey, 1 Vesey, 111, there was a devise of £ 300 to Elizabeth Paxton to be paid to her at age of 21 or marriage, the interest in the meantime for her maintenance and education, but, if she died before 21 years or marriage, then to the younger children of her nephew equally to be divided to and among them. Some of the younger children were born before, some after, the making of the will, and some after the death of the testator. Hardwicke, Ld. Ch., said:
" It is stated the word ‘ younger’ must be restrained to the time of making the will, others say to the death of the testatrix, others to the death of Eliza, under age and before marriage: others that it should be given to such as should be ...