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In the Matter of the Final Judicial Settlement of the Account of Proceedings of Mechanics & Farmers Bank, Albany, as Trustee for the Benefit of Henry I. Knickerbocker under Clause Third of the Last Will and Testament of Henrietta L. Knickerbocker, Late of the City and County of Albany, State of New York, Frances Christman, as Administratrix, etc., of Annie Knickerbocker, Appellant Winifred Chase Knickerbocker
Opinions in this case
- Majority — McNamee
- Dissent — Hill
McNamee, J.
The paragraph which was submitted to the surrogate for construction reads as follows:
“ Third. I give and bequeath to the Mechanic’s & Farmers Bank of Albany, New York, the sum of Eight Thousand Dollars ($8,000) in trust, nevertheless, to invest and reinvest the same, collect the interest and income arising therefrom, and to apply said interest and income to the use of my son Henry I. Knickerbocker, for and during the term of his natural life.
“ Upon the death of my said son I give and bequeath the corpus of said trust as follows, namely:
“A. To Annie Knickerbocker, widow of my deceased son Edmund C. Knickerbocker, the sum of Two Thousand Dollars ($2,000).
“ B. To my grandson, Irving Knickerbocker, the sum of Three Thousand Dollars ($3,000).
“ C. And the remainder of the corpus of said trust fund to my said granddaughter, Winifred Chase Knickerbocker.”
The will was made February 10, 1927, and was probated upon the death of the decedent which occurred on May 27, 1927. The beneficiary Annie Knickerbocker named in the trust, died December 12, 1934, leaving the appellant Frances Christman her only next of kin, who was appointed administratrix of her estate. The life beneficiary in the trust died May 6, 1937.
The trust was set up and invested by the trustee as directed in the will. - Upon the death of the life beneficiary, the trust fund had decreased in value to $4,651.39. The problem presented is whether, on the one hand, the remaindermen Frances Christman (administratrix of Annie Knickerbocker) and Irving Knickerbocker shall be paid in full the amounts of their legacies, $2,000 and $3,000
[311] respectively, and the remaining balance paid to the remainderman Winifred Chase Knickerbocker, or, on the other hand, whether the first two shares shall abate and the balance of the entire trust fund be divided between the three remaindermen, two-eighths to Frances Christman, three-eighths to Irving Knickerbocker, and three-eighths to Winifred Chase Knickerbocker.
The testatrix had in mind a benefaction of $8,000, in the form of a fixed and invested fund. In the “ Fifth ” paragraph of her will the testatrix bequeathed and devised “ All the rest, residue and remainder ” of her estate, and in that paragraph used this expression three times as applicable to separate sets of conditions. There was no suggestion in the will that the “ Fifth ” clause was not the only and all of “ the residuary clause,” nor that the trust fund or any part thereof should form a portion of her “ residuary estate.”
There is nothing in the paragraph marked “ Third ” which indicates that any of the three remaindermen therein named was to suffer because of a diminution in the trust estate, or to benefit in the event of an increase, unless it be the language of subdivision C, viz., that “ the remainder of the corpus of said trust fund ” was given to Winifred Chase Knickerbocker. The fund being an invested one and of a fixed amount, and upon a view of the whole will, this language did not render Winifred Chase Knickerbocker a true residuary legatee, nor her share a true residuum. This language created a residue in form only. The bequest to Winifred Chase Knickerbocker was not a floating fund dependent upon the fact that the trust fund would increase or decrease. The testatrix had in mind and was making a bequest of $8,000, and the gifts of the parts of the fund were of equal rank. The testatrix indicated a provision for Winifred Chase Knickerbocker of $3,000 as definitely as though she had used figures instead of the words “ the remainder of the corpus of said trust fund.” (Provident Trust Co. of Philadelphia v. Graff, 18 Del. Ch. 255; 157 A. 920; Wright v. Weston, 26 Beav. 429; Page v. Leapingwell, 18 Ves. Jr. 463.)
Had the trust fund in this case been increased instead of decreased, being a single benefaction of a fixed and invested sum, the entire trust fund and its increase would have been ratably apportionable among the three remaindermen. (Matter of Cruddas, L. R. [1900] 1 Ch. 730; Matter of Low, 232 App. Div. 414; affd., 257 N. Y. 613.)
The decree of the surrogate should be affirmed, with costs.
Crapser and Heffernan, JJ., concur; Hill, P. J., dissents, with an opinion; Rhodes J., dissents and votes for a reversal of the decree and a determination as indicated in the dissenting opinion of Presiding Justice Hill.