
    West v. Reynolds et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    January, 1889.)
    1. Wills—Nature of Estate.
    A will gave all of testator’s property to his two sons, in trust, for five years, to he used in such a manner as to produce an income, which testator directed should be equally divided among testator’s widow and children. At the expiration of the five years he directed that all his property, together with the “gains, income, interest, rents, issues, and profits, ” should be equally divided among his widow and children, naming them, and then provided that, “in case of the death of either or any of my said children without leaving lawful children or child, I give and devise his or her part and share of my said estate aforesaid, and of the gains, income, ” etc., “as aforesaid, to the survivors of them in equal proportions. ” Held, that the contingency of death without issue was limited to the continuance of the five years, and on the expiration of that time the living beneficiaries became absolute owners of the property devised, and of the rents and profits thereof, as tenants in common.
    2. Same.
    During the continuance of the five years'the beneficiaries agreed to divide the estate, and from the share assigned to one she collected rents and profits, part of which she deposited in bank, and with another part she purchased personal property. Held that, on her death without issue after the expiration of the five years, such property and money passed to her personal representative, and not under testator’s will.
    Appeal from special term, Onondaga county.
    Action by Joseph E. West, as administrator of Elizabeth Reynolds West, deceased, against George A. Reynolds and others, to recover certain personal property, money deposited in bank, and cboses in action, of which plaintiff’s intestate died seised, or to compel an accounting thereof. At the time of the commencement of the action this property and money were under the control of the defendants, and claimed by them, or some of them, as owners thereof. It is admitted that the property was purchased with money, and that the money on deposit was received from the rents, income, and profits realized by Mrs. West in her life-time from real estate devised to her by her father, who died in the month of March, 1878. The defendants assert their claim to this property under the provisions of the will; the testator therein being the father and common ancestor of the defendants and said Elizabeth Reynolds West. Richard Reynolds, the ancestor, by his said will gave and devised all his real and personal property in trust to his two sons, Richard S. Reynolds and George A. Reynolds, for and during the period of five years after his death, and gave them the power in the mean time to sell, dispose of, and convey the same, or any part thereof, as the interests of his wife and children, as legatees or devisees under the will, might require; and he directed the rents, incomes, and profits of the whole estate to be divided into seven equal parts, and the masters to pay one of said parts to his widow, and one to each of his said children, naming them, and including his daughter, the plaintiff’s intestate, and he made provisions for, and provided that this division should be in all respects equal between, said devisees. After the expiration of the five years mentioned he gave and‘devised all his real and personal property, and all accumulated gains and increase of the same, equally to his widow and children, to each one equal one-seventh part thereof. The will then provides, in case of the death of either or any of his said children without leaving lawful children or child, that her or his share of .the estate, and of the gains, increase, interest, rents, issues, arid profits thereof, as aforesaid, goes to the survivors in equal portions, and to their respective heirs and assigns, forever.
    On the 15th day of February, 1879, the said devisees and legatees entered into an agreement to partition the real estate so devised by said last will of Bichard Reynolds, and did so. From the rents, income, and profits received by Mrs. West from her share she purchased in her life-time, and became the owner of, the several articles of personal property in controversy in this action, and the money was as well a part of the rents thereof, paid to her from her part of said real estate. Following is the opinion at special term:
    “Kennedy, J. The contention on the part of the defendants is that Elizabeth Reynolds West having died without issue and intestate, although more than five years after the death of her father, her interest in the real estate derived under the will of Richard Reynolds, under the fourth clause thereof, not only descends to her brothers and sisters her surviving, but the rents, issues, and profits, and proceeds thereof, received by her during her life-time from her part of the real estate set off to her and her sisters, and used and appropriated by her, as well become their property upon her death without issue, notwithstanding the partition and division of the estate above referred to. Leaving out of view for the moment the effect of the partition of the estate between the respective devisees, let us inquire as to the intent of the testator, as evidenced by the will, and ascertain the true construction which it bears. The purpose of the testator, as apparent from the general scope and terms of the instrument, was to make an equal division of his estate among his children. To accomplish this he first gives all his estate to his two sons for five years, to be used by them during that time in such manner, that an income would be derived therefrom, and this he directs shall be divided equally as it accrues annually. At the expiration of this time he gives and devises all his estate, and the accumulations, gains, and increase of the same, to his widow and children, one equal one-seventh part thereof to each. At the time the will was made the testator was engaged extensively in the manufacture and sale of shoes at Utica. This business he expects his sons to conduct for the five years named. He as well expects that profits and gains will be derived therefrom, and these are to be equally divided; but, of necessity, there will at all times be unsettled and undivided profits and losses, and which, except upon an actual accounting had, could only be ascertained, which would remain in the hands of the trustees until that time, and be ultimately paid over to the beneficiaries. Hence it was contemplated by the testator there might be an accumulation of profits and income in the hands of his sons. To provide for this contingency, upon the death of either of them he directs that, if one of the devisees should die within the five years, his or her share, with any and all .accumulation of profits which such share was at that time entitled to, remaining in the hands of the trustees, should go to the survivors. Therefore, in the fourth clause he provides as follows: ‘In case of the death of either or any of my said children without leaving lawful children or child, I give and devise .his or her part and share of my said estate aforesaid, and of the gains, incomes, interest, issues, and profits as aforesaid, to the survivors of them in equal proportions forever.’ By the terms ‘ the share of my estate aforesaid,’ and ‘ the rents, issues,' and profits aforesaid,’ he could only refer to the division of his estate and increase and profits as provided previously in the second clause in the will, viz., at the expiration of five years’ termination of the trust-estate in his two sons. Jarm. Wills, 842; Schouler, Wills, § 471, and cases cited, note 9-Again, by the second clause in the will the testator gives, devises, and bequeaths all his remaining real and personal property after the termination of the trust-estate, together with the accumulations, gains, and increase, as follows: One equal seventh part or'share to his wife, her heirs and assigns, forever, and one equal seventh part or share thereof to each of his children, (naming them,) respectively and in severalty, and to their respective heirs and assigns, forever. By this provision an absolute vested estate is secured to-the devisees in an equal undivided one-seventh part of the real and personal estate, together with one equal seventh part of the accumulation, gains, and profits then remaining in the hands of the trustees undivided.
    “It is said that a later clause in a will must be .deemed to affirm, not to contradict, an earlier clause, if such construction can fairly be given. Schouler, Wills, § 474. Adopting this as a reasonable suggestion in seeking a proper-interpretation of the instrument, and it would seem that there was little difficulty in learning the intent of the testator. Giving the defendant the most favorable construction, and his intention was that at the expiration of the trust-estate, or five years after his death, an absolute vested estate was secured to the respective devisees in both the corpus and the rents, issues, and profits, and that the contingency provided for by the death of any without children surviving was a contingency which terminated upon the expiration of the five years,—the termination of the trust-estate.
    “If it were not for the peculiar language contained in the fourth clause in the will, viz., ‘ The gains, income, interest, rents, issues, and profits,’ I think it clear that the intention of the testator was to provide against the death of either devisee without children before his own. Stevenson v. Lesley, 70 N. Y. 512; In re Mahan, 98 N. Y. 372; Vanderzee v. Slingerland, 103 N. Y. 47, 55, 56, 8 N. E. Rep. 247; Quackenboss v. Kingsland, 102 N. Y. 128, 6 N. E. Rep. 121. This is the settled interpretation of the clause of survivorship in wills, and is only departed from when it manifestly appears that the words refer to-some other event than the death of the testator. Moore v. Lyons, 25 Wend. 119; Livingston v. Greene, 52 N. Y. 118; Embury v. Sheldon, 68 N. Y. 227. In this case the language above quoted would indicate that the gains referred to were those he expected to arise from the business to be conducted by his sons as trustees, and during the continuance of the trust-estate, and leads to the conclusion that the contingency of death of either of the devisees was extended to the termination of the trust, at which time the estate oeeame absolutely vested in them as tenants in common. The testator died in March, 1878; the trust-estate terminated in March, 1883. Elizabeth Reynolds West died in February, 1884, then being about 45 years of age. The conclusion, therefore, if the above propositions are correct, is that in March, 1883, she became vested with an absolute estate in fee in the real estate devised, and the owner of the rents and profits, whether derived therefrom during the continuance of the trust or afterwards. The money and property in controversy being, as admitted, the proceeds of said rents and profits, belonged to her absolutely at the time of her death, and as such passed as a part of her personal estate into the possession of her administrator, the plaintiff, for administration.
    “After the death of the testator, and within the five years’ continuance of the trust-estate, the devisees mutually agreed to partition and divide up the estate between them. This idea was carried out, and the division made; From that part assigned to the decedent, Mrs. West, she collected and received rents and income. A portion of these she invested in articles of jewelry and personal ornaments, a portion she devoted to her support and the support of her family, and a part she deposited to her own credit in bank; so that at the time of her death she owned and possessed the property and money and evidence of debt in controversy in this action. This property the defendants have under their control, and refuse to deliver to the plaintiff, as the administrator of his wife, because they say it is the proceeds of the increase of her share of the estate of her father, and, under his will, she having died without issue, the same reverts to them. The rents, issues, and profits of her share set off to her by agreement of all the parties interested, contingently or otherwise, became her absolute property, and subject to her disposal during her life-time. It being hers, I see no reason why upon her death it did not form a part of her estate, and pass to her administrator for this reason. Suppose she had invested these rents and profits in business, from the conduct of which benefits accrued to her; will it be pretended that this, or any part of it, upon her death would have passed to her surviving brothers and sisters under her father’s will in question? The statement of the proposition is, of itself, a negative answer to the suggestion.
    “In my judgment the property, etc., in controversy form a part of the estate of the plaintiff’s intestate, and as such that he, as administrator, is entitled to the possession of the same for the purpose of administration. Judgment is ordered accordingly, with costs.” Defendants appeal.
    Argued before Martin and Pollett, JJ.
    
      D. C. Stoddard, for appellants. W. Eernan and IV". C. White, tor respondent.
   Per Curiam.

Judgment affirmed, with costs against the appellants personally, on opinion of Kennedy, J., at special term.  