Beers v. Grant

Ingraham, J.:

This case comes before us as a remnant' of Manice v. Manice (43 N. Y. 303) and presents a question arising under a clause of Mr. Manice’s will, which there was no occasion in that case to construe. The present appeal is hy James Tuttle Smith, individually and as éxecutor of the will of his wife, Frances Manice Smith, from a judgment entered upon the report of a referee in an action brought for an accounting by Mr. Beers, as substituted trustee, upon the termination of the trust, to settle his accounts. The question- in volved relates to the ownership of the corpus of a fund constituted or created under the 16th clause of the will of Mr. Manice for.the benefit of his daughter Frances. The appellant claims the whole of that fund, or, if that claim be not sustained, then he insists that he is entitled, as his wife’s executor, to one-fifth of the fund held in trust for her. His claim to the whole rests upon provisions of the will of his wife (which was duly proven) appointing her share in her fathers estate to her husband. Alternatively he claims one-fifth of two-twelfths of the testator’s' estate held in trust for Mrs. Smith, the latter claim being asserted on the ground that, upon her death without issue, the estate held in trust for her passed to the heirs .at law of Mr. Manice and that Mrs. Smith was one of such heirs at law.

The learned referee has held that neither of the contentions of the appellant is correct and_has awarded,the whole fund to the respondents, as between whom there .is no controversy before us, and, therefore, we will only consider the question of the construction of the will as affecting the right ,of Mr. Smith to participate in the estate of Mr. Manice, the original testator. We have but little to add, if anything, to what the referee has expressed in his opinion.

There is no dispute as to the facts. The testator, executed his will on August 23, 1858. His family then consisted of his mother, his wife, two sons, a married daughter, Mrs. Lockwood, and two unmarried daughters, Caroline Amelia Manice and Frances Isabella Manice, who are all referred to" in the will. The testator died in April, 1862. There wás a codicil to the will, but it does not seem at present important. By the 16th clause of his will the testator gave to trustees two equal twelfth parts of his residuary estate in trust to invest and pay the income for the use of his daughter Frances (Mrs, Smith) for and during her natural life, and after her death to divide the said two-twelfths into as many shares as there should be children of his said daughter Frances living at her decease. The testator then provided that in case of failure of children of his said daughter Frances, his executors and trustees should transfer, and pay over the said-two-twelfths to his heirs at law in such shares, and proportions as by the laws of the State of FTéw York •they would take and inherit real estate of which he should die pos-, sessed and intestate*, provided, however, that in case either of .his daughtérs should die unmarried and without leaving lawful issue her surviving, she was authorized; and empowered to make an instrument of appointment. in the nature of a last will and testament, disposing of the said shares of his estate so to be held in trust for her benefit, and in case of her death the same should be. transferred ‘to the persons and parties in the shares and proportions which she should so appoint. ' .

Mrs. Smith died after her father, without children her surviving, and left a will .giving her property to her husband, including that over which • she had a power of appointment; but it is obvious that according to the language of the will, which expresses á clear intention of the testator, the power of appointment could not be exercised unless she died unmarried and without issue. This seems not to be open to controversy. The right to appoint' depended upon the daughter dying unmarried and without issue. There is no ground for claiming that the word “ and ” is to be read “ or.” The power of appointment was to. be exercised under particular circumstances, and was not a general but on the contrary á strictly limited power. The referee in so holding was. right. But the claim is made that even if the power of appointment did not exist, that Mr. Smith is entitled to one-fifth of the two-hwelfths of the éstate which Mi. Beers held in trust for Mrs.. Smith ; that the share of Mrs.. Smith 'in- her father’s- estate passed to the heirs at law of the testator, and that she was one of such heirs.

'■ We think the referee is-right in his understanding, of the scheme of the will, and that Mrs. Smith had no interest in- the property which -would pass by bequest or devise to her husband-,, and that the conclusion at whieh he arrived was correct, namely, that upon the death of Mrs.- Smith it became the duty of the trustee to convey, transfer and pay over the trust fund, both real and personal, in the shares which they would have taken "to and among those who would have been Mr. Manice’s heirs at law had he died a moment after Mrs. Smitlfis death.

The judgment should be affirmed, with costs.

Laughlin and Clarke, JJ., concurred; O’Beien, P. J., dissented.