Baylies v. Hamilton

Van Brunt, P. J.: This action was brought for the partition of certain property at the comer of Broadway and Spring street in the city of New York, of • three undivided eighths interest in which Bobert Bay Hamilton died seized. The questions upon this appeal arise as to the construction of the will of Bobert Bay Hamilton. He died on the 23d of August, 1890, leaving a last will and testament, dated.March 1Y, 1890, which was admitted to probate by the surrogate of New York county. The will in question is as follows: :£ I, Bobert Bay Hamilton, of the city of New York, do make, publish and declare this my last will and testament hereby revoking all former wills. " I direct my executors, in case I die in a place, not inconveniently distant from a proper crematory, to have my body cremated. “ I give, devise and bequeath my interest in the property known as the Prescott Building, corner of Broadway and Spring street, in the city of New York, to my executors for and during the natural life of my brother, Schuyler Hamilton, Jr., in trust nevertheless to — 135 — receive the income and profits thereof, and after paying all taxes, insurance, interest and repairs to pay over the net income thereof to my said brother, Schuyler Hamilton, Jr., for his support and maintenance, free from any claims of creditors, and upon his death the same shall go with my residuary estate. I authorize my executors to lease said property for a term not exceeding twenty-one years to commence in possession. “ I give and devise to the child, my adopted daughter, christened Beatrice Bay, at Atlantic City in August, 1889, an annuity of twelve hundred dollars a year, to be paid to her by liiy executors in monthly installments during her natural life, and I hereby charge the same upon my property in the city of Brooklyn. I hereby appoint Edmund L. Baylies guardian of the person and estate of the said Beatrice Bay. “ I direct my executors as soon as possible during the lifetime of the survivor of them to expend the sum of ten thousand dollars in the purchase and erection of an ornamental fountain which I give and bequeath to the Mayor, Aldermen and Commonalty of the City of New York, provided that such fountain maybe erected in one of the streets, squares or public places in said city. “ I give, devise and bequeath to my aunt, Nathalie E. Baylies, all my property, except books, which at the time of my death may be in her house, number 369 West 28th Street, in the City of New York. “ I give, devise and bequeath all my books, silver and jewelry to • my cousins, Edmund L. Baylies, Cornelia P. Lowell and Walter C. Baylies. “ I give, devise and bequeath my guns, rifles, boats, dogs and my share in the Monroe Marsh Company to my friend, Gilbert M. Speir, Jr., requesting him to sell such as he does not desire to keep for his own usé. All the rest and residue and remainder of my property, I give, devise and bequeath to the children of my brother, Schuyler Hamilton, Jr., the share of any child dying before attaining the age of twenty-one years to go to the survivor, and in case all said children die before attaining the age of twenty-one years, I give, devise and bequeath the said rest, residue and remainder. of my property .as follows: The sum of ten thousand dollars and all — 136 — property which may hereafter come to me from my father or any one of his blood or its value to the children of William G. Hamilton, all the balance of my estate to the children of Nathalie E. Baylies. “I appoint,Gilbert'M. Speir, Jr., and Edmund L. Baylies execu-. tors of this, my last will and testament. “Witness my hand and seal this 17tli day of March, 1890. “ROBERT RAY HAMILTON.” ■ At the date of the testator’s will, his brother, Schuyler Hamilton, Jr., was a married man having two children, the infant appellants, Schuyler V. C. Hamilton and Gertrude Ray Hamilton. Ten days after the date of the will a third child, the infant appellant, Violet -L. Hamilton, was born. After the death of the testator, Schuyler Hamilton, Jr., married a second time and another child was born to him on the 27th of January, 1897, the infant defendant Alexandra S. Hamilton. A child referred to in the will by the testator as his adopted daughter had been provided for by him until his death. In construing theWill the learned referee held that the child born to Schuyler Hamilton, Jr., after the death of the testator was enti-. tied to participate in the final distribution of the real estate devised to Schny.ler Hamilton, Jr., for life,'and that the annuity given to Beatrice Ray was a charge upon the remainder of the property, in question after the death of Schuyler Hamilton, Jr., and it is from these determinations of the referee that this appeal is taken. ' The language of the will in respect to the final distribution of the estate devised to Schuyler Hamilton, Jr., is'that “ upon his death the same shall go with my residuary estate.” By the residuary clause the testator devised and bequeathed all the rest and residue and remainder of his; property to the children of his brother, Schuyler Hamilton, Jr.j the share of any child dying before the age of twenty-one years to go to the survivor, and in case all said children should die before attaining the age of twenty-one years, there was a devise and bequest over. It is conceded that, under the residuary clause, only those children who were living at the' death of the testator were entitled to take, and that the child born to Schuyler Hamilton, Jr., after the death of the testator has no interest in such residuary estate. It is further conceded that had the testator provided in respect to the remainder — 137 — of the real estate devised to Schuyler Hamilton for life, that upon his death such remainder should go to, the children of his brother, the after-born child of Schuyler Hamilton, Jr'., would have been entitled to participate. But it is claimed that, under the- peculiar language of the will, such after-born child is not entitled to take because of the limitation contained in the will that such remainder shall go with his residuary estate, and that as the after-born child could not participate in the residuary estate, it took no interest under the will in the real estate devised to Schuyler Hamilton, Jr., for life. This view, we think, is the correct interpretation of the will. There was no devise to a class, as would have been the case had the devise been to the children of Schuyler Hamilton, Jr. But by the language •of the will the persons who are to take this remainder are designated, namely, those persons who took his residuary estate. The right to participate in the residuary estate is made the qualification to take under this clause- disposing of the remainder of the real estate devised to Schuyler Hamilton, Jr., after his death. It is said that the testator knew of the birth of one of Schuyler Hamilton’s children after the date óf his will and before his death, but he made no change in his will; and that it is to be assumed that he intended to benefit all the children that Schuyler Hamilton, Jr., should leave at his death. The testator was a lawyer. He drew his own will, and probably knew what he intended to do with his property, and ‘by distinct and unequivocal language he states explicitly that the remainder shall go with his residuary estate. Now if it goes, as has already been stated, to this after-born child, it does not go with the residuary estate. The testator by the language used distinctly provided that that remainder should go to those who took under the residuary clause, and it is only by an interpretation utterly at variance with the words used by the testator that the construction claimed by the respondent can be put upon the will. We are asked to construe this will in view of circumstances which in all probability the testator never thought of, namely, the remarriage of Schuyler Hamilton, Jr., under the circumstances stated in the record. While it is a canon of construction, never to be disregarded, that the intention of the testator is to govern in the interpretation of a will although it may not be in entire harmony with the language — 138 — . therein-contained, .yet such method of construction is.not to be resorted to where the language is explicit and free from d.oubt or uncertainty. In the case at bar it would have been difficult for the testator to have used language more forcible had he intended that only those who participated in his residuary estate should take-as remaindermen the interest in the real estate, the income of which was devised for life to Schuyler Hamilton, Jr. He has taken special care to designate the persons who should benefit, by that devise, and it does not seem to us that this apparently clear intention .of the testator is to-be departed from because we might be of the opinion that, had he anticipated that which happened after his death, he would have made a different disposition of this remainder. We. think, therefore, that only the children of Schuyler Hamilton, Jr.,, who participate in the residuary estate are entitled to take the-remainder of the real estate devised to Schuyler Hamilton, Jr., for life. . . Ueithér do We think that, the annuity given to Beatrice. Bay is a charge upon this remainder. The language of the will is.: “I give and devise to the child, my adopted daughter, christened Beatrice Bay, at Atlantic City, in August, 1889, an annuity of twelve hundred dollars a year to be paid to her by • my executors in monthly installments during'her natural life,-and . I hereby charge the same' . upon my. property in the ' city of Brooklyn.” At the time of the death of Bobert Bay Hamilton, he had-personal property to the amount of about $60,000, and debts amounting to about $20,000, ■ leaving a balance of $40,000, the income of which would be appli- ■ cable to the production of this annuity, and which was clearly .sufficient for that purpose. In consequence of litigations arising after his death, which he had no reason to anticipate and which there is no evidence that he did anticipate, his personal estate has been very materially diminished so that it is not. sufficient for the . production of this annuity. It is claimed that this annuity is to be-produced before .any person can benefit under the provisions of the will,, except as to certain specific legacies and the devise for the -benefit of Schuyler Hamilton, Jr., that being also considered a specific devise. We do not think that this contention can be supported. The fact that Bobert Bay Hamilton made this annuity a charge upon specific real .estate is an evidence- that it was. his hiten — 139 — tion that his other real estate should not be incumbered with any such charge. But even if this be not so the same reason that prevents this annuity from being a- charge upon the devise to Schuyler Hamilton, Jr., namely, that it is a specific devise, covers the remainder after his death because that is a specific devise to certain definite individuals who are to be ascertained by means of their participation in his residuary estate, the effect of the devise being precisely the same as though he had named individually the persons who took under the residuary clause. The devise to them is just as specific as the devise to Schuyler Hamilton, Jr., and must necessarily be , governed by the same rules of construction. We think, therefore, that the learned referee erred in holding that' this annuity was a charge upon such remainder. The judgment should be modified in accordance .'with the views expressed in this opinion, with costs to all parties appearing, upon this appeal to be paid out of the estate. . ' Babrett, Rumsey and Patterson, JJ., concurred.