
    Matter of the Judicial Settlement of the Account of Allan W. Godwin, as Sole Surviving Trustee Under the Last Will and Testament of Richard J. Godwin, Deceased.
    (Surrogate’s Court, Kings County,
    December, 1912.)
    Wills—Devise of Residuary Estate With Remainder Over—Vested Remainder—Death of Remaindermen Before Life Tenant Leaving Issue.
    Where a will creates a trust to pay the net income of testator’s residuary estate to his wife during life, and upon her death to pay over, divide and distribute said estate to and among four sons in equal shares, and provides that, should any one or more of them die without leaving lawful issue before such distribution, then the share or shares of him or them so dying should be equally divided among all testator’s grandchildren then living share. and share alike, and in ease of the death of any one or more of said grandchildren dying leaving lawful issue such issue should receive the share his, her or their parent would have taken if living per stirpes and not per capita, to be paid to said grandchildren or their issue on attaining majority, each son takes a present estate subject only to be defeated on his death without issue, and such of said sons who had died since their father and before their mother leaving issue took and left a vested estate in the trust fund which in each instance escapes the further control of testator’s will and as a part of the general estate of said sons, respectively, is governed by the Statute of Descent and Distribution.
    
      Proceeding upon the judicial settlement of the accounts of a sole surviving trustee.
    
      Jacob Brenner, for accounting trustee.
    
      George V. Brower, for Kings County Trust Company as guardian of the estates of the children of David Godwin, deceased.
    
      Kramer, Cohn & Meyer, for issue of Francis C. Godwin, deceased.
    
      Frederick H. Cowden, for Agnes M. Godwin, as administratrix of David R. Godwin, deceased.
    
      Henry C. DeWitt, for Reversionary Estates Company.
   Ketcham, S.

The will under this accounting is made contains a standard trust to pay the net income of the residue to the testator’s wife during her life, and the further trust upon her death, fairly condensed to present the questions which have been submitted, is as follows:

“ On the death of my said wife, I order and direct my said * * * trustees to pay over, divide and distribute all the said * e * residue of my estate * * * to and among the following persons, namely, * * * to my son John D. Godwin one fourth part thereof; to my son Allan W. Godwin one fourth thereof; to my son Francis C. Godwin, one fourth part thereof and unto my son David R. Godwin the remaining fourth thereof; should any one or more of my said sons die without leaving lawful issue him or them surviving, before such distribution and division is made, then and in that event the share or shares of him or them so dying shall be equally divided among all my grandchildren then living share and: alike: and in case of the death of any one or more of my said grandchildren dying leaving lawful issue him, her or them surviving, such issue shall receive the share, his, her or their parent would have taken if living, per stirpes and not per capita, to be paid to, had and received by such grandchildren or their issue as they severally attain the age of twenty-one years.

This will may be interpreted for every present purpose if it be determined that the testator’s sons took vested remainders, although subject to defeasance in case of death without issue. If that determination be reached, then each son leaving issue was the owner of the remainder reserved to him and the same passes to his representatives or, possibly, according to the nature of the property, to his heirs at law.

It is argued that there is an implied gift of these remainders to the issue of any son dying with issue before the life tenant. It is sought to support this claim by the significant absence from the eighteenth paragraph of the will of any provision for a gift over in case of the death of a son, leaving issue; although the same paragraph in case of the death of a son, without issue, makes disposition of each of the remainder interests to all of the testator’s grandchildren and is further solicitous for the destination of any fractional share in case of the death of a grandchild leaving lawful issue surviving him.

Whatever warrant for estates by implication may be found in the authorities, none of them indicate that a gift over can be inferred if by the inference a disposition to the issue should be imposed upon an absolute devise contained earlier in the will.

In Matter of Vowers, 113 N. Y. 569, the court, per Finch, J., says: “ The rule of construction which seems to have prevailed is, that the inference from the will need not be irresistible or such as to exclude all doubts possible to be raised, but must, nevertheless, be such as to leave no hesitation in the mind of the court, and must not rest upon mere conjecture. The intention must be clear so that no other reasonable inference can be made. * * * When his (the testator’s) words leave no doubt about his intention and can have no other reasonable interpretation, we are justified in upholding a legacy by implication where no gift in express terms has been made.”

In Masterson v. Townshend, 123 N. Y. 458, it is said: “ Courts have, from an early day, repeatedly upheld devises by implication, where no gift of the premises seems to have been made in the will, in formal language (citing cases). They are justified in so doing whenever such a construction expresses what the testator manifestly intended to express.”

In Close v. Farmers Loan & Trust Co., 195 N. Y. 92, the court discovered an intention that the trust for the daughter, upon her death leaving issue, should enure to the benefit of her issue, though no such provision was found in the will, but this finding was plainly based upon the conclusion that the testator “ did not give the fee or the principal to his daughter.”

In Matter of Moore, 152 N. Y. 602, an estate by implication was found, but no question there arose as to whether or not such an estate could be imposed upon a will in contradiction of an express prior gift.

In Matter of Hoffman, 201 N. Y. 247, no need for the implication there made could have arisen if the estate which was the subject thereof had not been suspended upon contingency.

“ The doctrine of enlarging estates by implication arises only in cases where the testator has himself left it uncertain what estate he intended to give. It is to further an unexpressed intention, and not to subvert a plainly expressed one, that the doctrine of enlarging estates by implication is resorted to.” Shreve v. Shreve, 43 Md. 383.

The cases cited and many others either declare or recognize the truism that.the inference of a gift cannot be made where the result would be to defeat or impair an express disposition.

Hence, if in the case at bar the estate be by a prior gift vested in one of the testator’s sons for every purpose and in every event except his death without issue, the implication not only should be avoided, but must be rejected, under the rigid rule: “ Where one estate is given in one part of an instrument in clear and decisive terms, such estate cannot be taken away or cut down by raising a doubt upon the extent or meaning or application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that estate.” Roseboom v. Roseboom, 81 N. Y. 356; Benson v. Corbin, 145 id. 351.

The doctrine of implied gift can, therefore, be applicable only where the remainder is contingent and ultimate gifts are substitutionary. In no' other case is there room for its use. That these remainders were vested, and not contingent, and that each son took a present estate therein, subject only to a defeasance in case of his death without issue, appears from many converging authorities.

It may be argued that the quality of contingency should be attached to a remainder in order to let in the implied gift to the issue of a deceased son where otherwise such issue might suffer from a neglect which the testator is presumed not to have intended. In the cases cited to support the theory of an implied gift to the issue the implication has been indulged only to repair a lapse in the will by which, except for the implication, the natural interests of the issue would have been ignored.

There would seem to be scant ground for any argument from the will at bar that the testator must have contemplated a gift over to issue. That argument would accord with practical righteousness and, therefore, suggest that the testator intended a gift to the issue if, without it, the issue would be totally deprived of representation in the share originally assigned to their parent; but, in the will under examination, the remainder, if vested in one of the sons, would pass to his legal representatives or heirs at law and for the greater part thereof would beneficially reach the issue surviving him. There is in this case no such revolting misfortune to be escaped by construction as would thrust itself forward for correction if the issue were totally deprived of the estate in the absence of an implied gift.

A feature of the will not to be neglected is that in the event of a death among the testator’s sons without issue there is not only a gift to all the grandchildren, but in the case of a death among them a gift over to the issue of such grandchildren, if any. Upon this, provision there is erected the fair argument that the testator, thus thoughtful in one event for the issue of all his grandchildren, could not have meant to exclude the particular children of a single son who might happen to die before the life tenant, leaving such children; but the essence of this contention, as clearly stated by counsel, is that, unless the implication of a gift be made, the issue of a son would be wholly excluded; but no such abhorrent result will follow if the remainder of the son be vested, and, as shown supra, be held to go to the son’s representatives, in larger part for the benefit of his children, or to them as heirs at law.

Without undue regard for the presumption in favor of the vesting of estates, or the appetite of the law for such construction as will avoid disherison of remaindermen, or intestacy or the lessening of an apparent devise to an heir at law (Hersee v. Simpson, 154 N. Y. 496; Clark v. Cammann, 160 id. 315, 326; Connelly v. O’Brien, 166 id. 406; Matter of Russell, 168 id. 169; Trowbridge v. Coss, 126 App. Div. 679, the vested character of the remainders in question seems plain.

In each instance there was a person “ in being who would have an immediate right to the possession of the property on the determination of the intermediate or precedent estate.” Real Prop. Law, § 40. The gifts in remainder were couched in a direction to divide and distribute in the future, but they were not so limited to a class that only those who might at the time of distribution fulfill the qualities of membership in such class were entitled to take.

In Shangle v. Hallock, 6 App. Div. 55, it is said, by Cullen, J., of the will there before the court, as follows: “ The children among whom the division is to be made are mentioned by name. In this respect the present case is stronger than those of Goebel v. Wolf and Matter of Tienken.”

In the Godwin will the devise is to four persons named and thére is no room for the application of the rule that the gifts were dependent upon survivorship and the maintenance of a place in any class. The present case is clearly excluded from the rule that “ Where the only words of gift are found in a direction to divide or pay at a future time, the gift is future, not immediate; contingent, and not vested.” It is rather within the broad exception that, if the postponement of the payment is for the purpose of conveniencing the estate of the decedent and of letting in an intermediate estate under his will, the interest shall be deemed vested at the death of the testator and futurity shall not be annexed to the substance of the gift. Matter of Young, 145 N. Y. 535; Matter of Crane, 164 id. 71. The rule last stated is affirmed, though not applied, in Matter of Crane, supra.

It is probable, though by no means obvious from the cases, that the intermediate estate which by its intervention would indicate an intention that the distributees to take in the future shall receive a vested estate is only a particular estate carved out for the benefit of a life tenant upon whose death the division is to take place and that a postponement for the benefit of one who himself is intended to share in the distribution, personally or by some form of representation, does not necessarily, if ever, intimate that the persons intended as distributees take a vested remainder.

Whether or not this distinction exists, the present will, by any criterion, does provide for a particular estate the maintenance of which is the sole cause for deferring the final division, and the postponement is clearly for the convenience of the decedent’s estate and for providing means by which it can discharge the burdens which the trust for the life tenant imposes.

The construction to be carried into the decree of distribution is that the sons named in the eighteenth paragraph who have died since their father’s death and before their mother’s, leaving issue, took and left behind them a vested estate in the fee or fund of the trust, and that such estate, in each instance, escapes the further control of the father’s will and as a part of the general estates of the sons respectively is to be governed by the Statute of Descent and Distribution.

Decreed accordingly.

LOSS.

EFFECT OF CANCELLATION, OR DESTRUCTION OF ONE OF DUPLICATE OR TRIPLICATE WILLS.

If a testator, who has executed a will in duplicate, cancels or destroys one part, the presumption is that he meant thereby to revoke the will. Crossman v. Crossman, 95 N. Y. 145; Biggs v. Angus, 3 Dem. Surr. 93; Farr v. O’Neill, 1 Rich. (S. C.) 80.

And this is so, whether the other part is deposited with some other person. Rickards v. Mumford, 2 Phillim. 23.

Or is in the testator’s possession. Pemberton v. Pemberton, 13 Ves. Jr. 290.

But where the duplicate is in the testator’s possession, the presumption is weaker. Pemberton v. Pemberton, 13 Ves. Jr. 290.

It has even been held that if a testator, having both parts in his possession, alters one, and then destroys that which he has altered, a presumption of revocation, although slight, arises. Pemberton v. Pemberton, 13 Ves. Jr. 290.

Where one copy of a will, executed in duplicate, was destroyed by testatrix, animo revocandi, and there was no proof that the other was not still intact, it was presumed that the destruction of the one paper was intended" to nullify the other. Asinari v. Bangs, 3 Dem. Surr. 385.

Where a will is executed in duplicate, each expresses testator’s will, and either may be proved and admitted to probate, without the other. Crossman v. Crossman, 95 N. Y. 145.

REVOCATION OF WILL BY SUBSEQUENT BIRTH OF ISSUE.

At Common Law.

At common law the birth of a child does not revoke a will made after marriage, since a married testator may be presumed to contemplate such an event. Swan v. Hammond, 138 Mass. 45, 52 Am. Rep. 255; Brush v. Wilkins, 4 Johns. Chancery, 506; Mundy v. Mundy, 15 Ohio Cir. Ct. 155; Ordish v. McDermott, 2 Redf. Surr. 460.

In Iowa the common law was repudiated at an early date. It was uniformly held that the birth of a child of the testator-operates as an implied revocation of a will before made. Alden v. Johnson, 63 Iowa, 124.

This principle has been extended to illegitimate children notoriously recognized by their father, who under the statutes of this state, inherit from the father share and share alike as his legitimate children. Milburn v. Milburn, 60 Iowa, 411.

Under the Roman law the subsequent birth of a child alone operated as the revocation of a will. Sutton v. Hancock, 115 Ga. 857.

The will of a wife, enciente when executed, which fails to provide for, or exclude, the unborn child from participation thereunder, is, under the common law, revoked by the birth of the child. Pearce v. Carrington, 124 S. W. 469.

Under Statutes of Other States.

Under statutes the common law has been greatly modified by the various statutes of descent and distribution, and in other jurisdictions statutes, varying in their wording, have been enacted, by the provisions of which a will is revoked in toto by the birth of a child after the execution of the will. Fry v. Fry, 125 Iowa, 424.

Statutes have also been enacted providing that a will is revoked in toto by the birth of a child after execution of a will, where no provision is made in the will for such child. Sutton v. Hancock, 115 Ga. 857.

And under the statutes of one state it has been held that the will is revoked in toto by the birth of a posthumous child, where no provision is made in the will for the child, or it is not mentioned in such a way as to show an intention to make such provision. Rhodes v. Weldy, 46 Ohio St. 234.

Under Statutes in Hew York.

The will of a married woman, executed pursuant to the statute, is not revoked by the subsequent birth of children, who are left wholly unprovided for. Cotheal v. Cotheal, 40 N. Y. 405, over-ruling Plummer v. Murray, 51 Barber, 201, and Loomis v. Loomis, 51 Barb. 207.

A seaman’s will, executed in 1813, was held to be revoked by the subsequent birth of children, and entire change of circumstances, and an unexecuted paper, drawn by him, in the form of a will, in 1840. Sherry v. Lozier, 1 Brad. 437.

Under the revised statutes (2 Rev. St. 64, s. 42) there can be no implied revocation of a will by other means than those specified; a will made in ignorance of the existence of a living child is not revoked, even at common law, by the discovery of its existence. Ordish v. McDermott, 2 Redf. 460.

An only child, born after the execution of a will, takes the same interest in the testator’s real and personal property as if he had died intestate. Smith v. Robertson, 24 Hun, 210, 89 N. Y. 555.

The birth of a post-testamentary child is no ground for refusing the probate of a will. Matter of Bunce, 6 Dem. 278; Matter of Huiell, 6 Dem. 352.

A subsequent birth of an illegitimate child does not work a complete revocation of the mother’s will, or defeat its probate; such probate was held not to estop the child from subsequently bringing an action to recover its rights,' and where the property is all personal, it was held to be unnecessary that the probate be first revoked. The rule would have been otherwise, however, if legitimate issue were in existence. Bunce v. Bunce, 20 Civ. Pro. 332, 14 N. Y. Suppl. 659.

Where the will of a testatrix fails to provide for a child, born after the making of a will, it is in all respects valid, except as to such child, which succeeds to the same portion of the estate, as he would have taken, in case of his mother’s intestacy. Luce v. Burchard, 78 Hun, 537, 60 St. Rep. 770.

Where a married woman executed a will in this state, and afterwards had two children here, and then removed to Rhode Island, where she had another child, and died a resident of that state, and her entire property consisted of personal property in this state, and the laws of both states provide that upon the birth of a child, after the making of a will, such child shall have the same interest as if the parent died intestate, and the testatrix left a husband, who, under the laws of both states would, in case of intestacy, have taken the whole of the personal estate, but the will disposed of all her personal property, it was held that the children would have taken nothing had the mother died intestate, and were therefore entitled to no part of the bequeathed estate, but it should be distributed in accordance with the terms of the will. Matter of Witter, 2 Connolly, 530.

Where the beneficiary under a will died prior to the time for distribution, and left a will which contained no provision for a child born after she made it, it was held, that such child had an interest in the first estate, and that it, and the representative of the deceased beneficiary, were proper parties to án accounting by the testamentary trustees under the first will. Matter of Smith, 68 Hun, 530, 52 St. Rep. 772; affirmed in 139 N. Y. 611.

The birth of a child after the making of a will does not operate to revoke the will, but it merely renders the will inoperative as to that portion of the estate which would have been distributed to the child if the parent had died intestate; in such case, letters testamentary are properly issued to the person named as executor. Matter of Murphy, 144 N. Y. 557.

Where a child is born after his mother had made her will without providing for him, he is entitled to such portion of her estate as would have descended to him had she died intestate. Davis v. Davis, 27 Misc. 455, 59 N. Y. Suppl. 223.  