FRANCIS W. WHITWELL, as Trustee under the Last Will and Testament of WILLIAM WHITWELL, Late of Geneva, N.Y. , Deceased, Plaintiff,
WILLIAM WHITWELL, Individually and as Administrator de Bonis Non of the Estate of CORNELIA TIMS, Deceased, and Others, Defendants.
SUBMISSION of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
Frederic D. Whitwell, for the plaintiff.
William W. Robison, for the defendants Cornelia A. Robison and William Whitwell.
Lewis W. Keyes, for the defendant John Annan, individually and as administrator, etc.
Frank Rice, for the defendants William Whitwell, as administrator, etc., and others.
After making certain bequests and devises, the testator, by the 7th and 8th paragraphs of his will, disposes of all the rest and remainder of his property. By the 7th paragraph he disposes of the residue of his real estate for life to two nieces therein named, with remainder over to his two nephews, James Tims and William Whitwell, and a niece, Cornelia A. Robison. By the 8th paragraph he disposes of the residue of his personal property in the same way, but not precisely in the same form. It is there provided that the residue of his personal property shall be invested and the two nieces receive the income, and upon the death of the survivor the residue of the personal property is to be divided equally between the two nephews and the niece.
By the 9th paragraph of the will it is provided that 'In the event of the death of James Tims, William Whitwell or Cornelia A. Robison before the legacies hereinbefore bequeathed or devised to them become vested in them or before the time appointed for the distribution of the residuum of my personal estate, the legacies or distributive shares or both of the one or ones so dying shall not lapse, but shall pass to their children them surviving in equal shares.'
James Tims died leaving him surviving a daughter, his only child, who also died after the death of Tims. The death of both Tims and his daughter occurred before the time appointed for the distribution of the residuary personal estate, and the question here is whether the share of James Tims in the residuary personal estate is to be regarded as undisposed of assets of the testator, or whether the title thereto vested in the daughter and is to be distributed as a part of her estate.
As regards the share of Tims, the rule is invoked against the
personal representatives of his deceased daughter, that when a testamentary gift is found only in a direction to divide at a future time, the gift is future and not immediate; contingent, and not vested. But, as is said by Judge ANDREWS in Goebel v. Wolf (113 N.Y. 405, 412), this rule, as others of like character, is subordinate to the primary canon of construction that the construction shall follow the intent, to be collected from the whole will, and that the intention of the testator so ascertained must prevail, and that the general rules adopted by the courts in aid of the interpretation of wills must give way when on a consideration of the scheme of the will, or of special clauses or provisions, their application in the particular case would defeat the intention.
The explicit declaration of the testator respecting the share of one dying before the time appointed for the distribution of the residuum of the personal estate is that the share of the one so dying shall not lapse, but pass to his children. It seems to me, as pointed out by counsel for the personal representatives of the daughter, that the expression 'shall pass to' is words of express ...