The judgment appealed from was right and just, and it should be affirmed. To reverse it will be, in my opinion, to defeat the only presumable intention of the testator. By the provision of his will under consideration, he directed the creation of a fund for two purposes. It was, in the first place, to provide for the payment of annuities to certain persons named and, in the second place, it was to belong to those members of a class described, who might be living at the death of each annuitant, when a portion would be released. That was the plain meaning of the careful language used, that "my executors do set apart and invest a *Page 468 fund sufficient to produce the above annuities, or a sufficient amount of stocks to be held for that purpose, which fund and theunappropriated income thereof is, on the decease of the annuitants as they respectively die, to be divided among mygrandchildren who shall be living at the time of the death of the respective annuitants," etc.
Words cannot express more clearly that the executors were invested with a discretion as to the amount of the fund and that such fund, when it came into existence by their act, was intended to benefit, ultimately, the class of grandchildren, or the survivors of the class. Of course, there can be no pretense that the executors abused their discretion in setting apart a fund of $400,000; for their act was confirmed by the court and the decree directing it was not appealed from. (In re Willets, 112 N.Y. 289. ) It was, then, settled for all time that the sum of $400,000, so set apart, constituted the principal of a trust fund for the annuitants and belonged in remainder to such of the grandchildren as might survive, according to the terms of the clause. It was a valid trust. (Cochrane v. Schell, 140 N.Y. 516 -533.) It was no longer a part of the general estate and was as much withdrawn from the residuary estate as though the testator had, himself, fixed the amount of the fund, instead of leaving it to the discretion of his executors to fix. The ultimate right to its possession as, from time to time, by the decease of annuitants, portions not needed to feed the existing annuitants were distributable, vested at once in the grandchildren, subject only to the contingency that one or more might fail to survive. This view is enforced by a further consideration that, in disposing of his estate, the testator, at first, after creating the trust for the annuities, had divided his residuary estate into five trusts, one for each of his grandchildren with remainder to his, or her, issue. Subsequently, however, by codicil, the trust for Amelia Leavitt, one of the grandchildren and a respondent here, was revoked; so that she thereby is remitted to what shall come to her upon the division of the annuity trust fund. Was that a fluctuating and variable interest? It is *Page 469 quite difficult to understand how the trust fund could, in reason, be so regarded. As soon as it came into existence, the provisions of the will became operative upon it; which is to say, that the five grandchildren, then, became vested with remainders in it, conditioned upon survivorship. Shall the court now hold that this was not their right and deprive them of it, simply, because of the happening of circumstances in the twenty years which have elapsed since the amount of the fund was fixed by the executors and set apart by the decree? This is a proposition which I only consider with gravity, because approved by some of my associates.
But I think, further, that the doctrine of res judicata is properly invoked by the respondents in support of their contention. In every material point, the questions have been settled by prior adjudications. The decree of the surrogate upon the executors' accounting, in 1885, which fixed the trust fund at $400,000, was never appealed from and all parties in interest were before the court. In March, 1897, the plaintiffs brought an accounting and construction suit, to have it determined, among other things, whether Mrs. Pell-Haggerty (this appellant) was "entitled to share in that portion of the principal of the said annuity trust fund, and the unappropriated income thereof now in the plaintiffs' hands, which became distributable upon the death of a deceased annuitant * * * and that the said clause in the said Will concerning the said annuities and fund created therefor be construed by this Court in this action." This appellant, Mrs. Pell-Haggerty, answered, claiming whatever rights in the estate "or in the principal of the annuity trust fund" she might be entitled to. The judgment was: "That the defendant Mary W. Pell-Haggerty * * * is not entitled to any share in that portionof the principal of the said Annuity Trust Fund and theunappropriated income thereof, * * * which became distributable upon the death of said Sarah A. Willets, and that she is not entitled to receive the portion thereof which her father, the said Frederick Willets, would have been entitled to if he were living, and that the issue or children or *Page 470 personal representatives or assigns of either of the five grandchildren of the testator are not, and will not be, entitledto share in any distribution hereafter to be made of any part ofthe principal or unappropriated income of the said Annuity TrustFund, so long as either of said five grandchildren shallsurvive; but that the said portion of said principal and the unappropriated income thereof shall be divided and paid over to the survivor or survivors of said five grandchildren, as directed in said will." That judgment was not appealed from and, as a construction of this provision of the will, determining the persons entitled to share in any distribution of the principal or unappropriated income in question, it is res judicata. To claim, because the contention, now made upon this accounting by the executors, is that the principal of the fund should be reduced and the portion, not adjudged to be needed, transferred to the residuary estate, that the prior judgment is not binding seems to me to be trifling with a serious question. The prior judgment construed the will and adjudged the principal and unappropriated income to belong to the grandchildren as they might survive. It adjudged that there was an Annuity Trust Fund and who were the beneficiaries in remainder of that fund. Now, this judgment was subsequent to the decision in In re Willets, (supra), which was upon an accounting by the executors, in 1886. I do not consider the dictum of Judge EARL in that case to be authoritative as to the right to bring an action to reduce the amount of the Annuity Trust Fund. He had held, as to the determination of the surrogate setting apart that fund, that "it has never been appealed from and cannot now be reviewed or reversed upon this appeal. Even if we could," he continued, "we would feel indisposed to interfere with it." What he observed, as to what might be done in the future upon the subject of a reduction of the amount of the fund, was merely suggestive. But, if we give it weight, certainly its authority ceased when, twelve years afterward, the action to construe the will and to have this appellant's interest determined, resulted in the judgment *Page 471 which I have referred to. The opportunity, at least, was then and there, and all the parties were represented; but the judgment was never appealed from. The court was rendering its judgment upon the present and future disposition of the specific fund before it and adjudged that this appellant had no interest in it.
HAIGHT, VANN and WILLARD BARTLETT, JJ., concur with WERNER, J.; CULLEN, Ch. J., and CHASE, J., concur with GRAY, J.
Judgment accordingly.