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In the Matter of the Application to Compel an Accounting of Robert Breedon, as Trustee under the Last Will and Testament of Albert W. Breedon, Delia Breedon, Individually and as Administratrix, etc., of Reuben Breedon, Appellant Robert Breedon, as Trustee under the Last Will and Testament of Albert W. Breedon
Opinions in this case
- Majority — Hill
- Dissent — Bliss
Hill, P. J. We are to determine whether the corpus of the trust fund, set up by the “ Ninth ” paragraph of testator’s will, remaining after the death of the life beneficiary (Mary Agnes Merry) vested in testator’s children at his death or at the death of the life beneficiary.
The first direction and bequest of the “ Ninth ” paragraph is that at the death of Mary the fund “ is to be taken by my said wife, if living, and by my surviving children, share and share alike.” Thereunder in clear terms the bequest to the wife lapsed if she had predeceased Mary, and her estate took no part of the remainder.
The words “ if living ” applied only to the wife and the one-fourth of the remainder which was bequeathed to her “ if Uving.” Three-fourths of the remainder, if the wife was living when Mary died, and the whole if she had previously died, was “ to be taken * * * by my surviving children * * The wife would take if she survived both the testator and Mary, and such of the children as survived the testator would take.
The second part of the paragraph again dealt with the earher direction that the bequest to the wife was to “ lapse and be void ” if she predeceased'Mary. The final portion of the “ Ninth ” paragraph dealt with the absoluteness of the bequest to the children that had survived the testator. Such ambiguity as exists between this final provision and the absolute gift earher made might require consideration if Reuben had been survived by a widow and children.
In that event it might have been argued that the absolute bequest was limited, the share of the child dying before Mary passing to his children. Such condition does not exist. An absolute gift will not be cut down by a later ambiguous provision. Reuben left as distributees the petitioner, his widow, two sisters and a brother. Under such conditions, the earlier absolute bequest to Reuben as one of the surviving children of the testator is unaffected, and the widow is entitled to her interest therein.
(Moore v. Littel, 41 N. Y. 66; Matter of Chalmers, 238 App. Div. 672; affd., 264 N. Y. 239; Matter of Bolton, 257 App. Div. 760; affd., 282 N. Y. 728.) Heffernan and Foster, JJ., concur; Bliss, J., dissents, with an opinion, in which Schenck, J., concurs.