Leask v. . Richards

Haight, J. This action was brought to obtain a construction of the last will and testament and codicil of Hudson Iloagland, who died on the 30th day of January, 1904. The testator was a "widower and left no children or descendants. He left him surviving one brother and sixteen nephews and nieces and several grandnephews and grandnieces. Many of the nephews and nieces had married and had children, and some had died leaving children. The will contains bequests in favor of all of his nephews and nieces, with the sole exception of his nephew Edwin R. Hurd, who is said to have moved west upwards of fifty years ago, but the will contains a legacy to his daughter. It also contains legacies to a number of grandnephews and grandnieces, children of deceased nephews and nieces, and after making provisions for the surviving brother, and various other persons not necessary to be here considered, provides in the thirtieth clause as follows : “ All the rest, residue and remainder of my estate and property, that is to say, all not hereinbefore disposed of, I give, devise *299 and bequeath to my nephews and nieces, to be divided between, them in the proportions which the respective gifts made to them herein bear to each other.” It is said that there will be upwards of $1,000,000 distributed under this clause. It is contended on behalf of Edwin R. Hurd, the testator’s nephew who was not remembered in the will, that the residuary clause is void for uncertainty, for the reason that the “ respective gifts ” to nephews and nieces contained in other clauses of the will are of such a character that it is impossible to ascertain their amount. The clause referred to is very simple in its phraseology, is quite often found in wills, and is so specific and clear in its meaning as to leave little, if any, doubt with reference to the meaning of the testator so far as this question is concerned, It is quite true that a question has arisen with reference to the proportion that each nephew and niece shall take of the residuary estate, but this involves only a question of construction and the proportion is not impossible of ascertainment. We, therefore, conclude that the clause is not void, and that the testator did not die intestate as to his residuary estate. The bequest to each nephew and niece varies in amount, which, for the purpose of the question now to be discussed, we will divide into three classes. First, a direct bequest of a specified sum. Second, a bequest to the executors in trust of a specified sum, the income to be paid to a designated nephew or niece during life, and upon the death of the life tenant the principal is bequeathed to such life tenant’s children. Third, a bequest in trust to the executors of a specified sum, the income to be paid to the life tenant specified, and upon the death of such life tenant the principal to revert to the residuary estate. It is contended that the nephews and nieces to whom theineome of a specified sum has been given during life, are entitled only to the proportion of the residuary estate which the present value of their life estate bears to the amount given to the other nephews and nieces. We do not think that such was th§ intention of the testator, The words of the residuary *300 clause import an absolute gift of that portion of the residuary estate which the gifts made to the nephews and nieces bear to each other ; and in determining the amount of the gifts so made to the nephews and nieces, we incline to the view that the principal of each trust created should be taken as the sum given upon which the amount of the proportion of the residue should be determined. First, we have specific bequests of a specified amount. Second, we have bequests of a specified amount in trust with income to a life tenant, with remainder to such life tenant’s children. Here we have a vested remainder in-the children of the life tenant which finally disposes of the principal fund set apart in trust. There is, therefore, no apparent reason why such nephew or niece having a family should not be placed on the same footing as to proportion in the residuary estate as a nephew or niece having no children who has been given a specified sum absolutely. The third class of cases pertains to those for whose benefit a trust has been created who have no children to take as remaindermen, and the principal upon the death of the life tenant reverts to the residuary estate. But we think no exception was intended to be made as to those beneficiaries, in so far as their right to share in the residuary estate is concerned. The other nephews and nieces in effect become their remaindermen and their rights should be determined on the basis of the principal set apart for their use, in accordance with the rule adopted by this court in the somewhat analogous case of Weeks v. Cornwell (104 N. Y. 325). The remaining question to be determined is as to whether the grandnephews and grandnieces of the testator, children of deceased nephews and nieces to whom bequests have been made in the will, should also be included among the nephews and nieces entitled to share in the residuary estate. This is purely a question of construction depending upon the intent of the testator. We entertain the view that the testator intended to include them, and upon this point we adopt the . argument of Justice Scorr as expressed in the prevailing opinion below. *301 The judgment should he affirmed, with costs to the parties appearing in this court by attorney and filing briefs, payable out of the fund. Oullbn, Ch. T., G-ray, Edward T. Bartlett, Willard Bartlett, Hiscocic and Chase, JJ., concur. Judgment affirmed.