In re Rand's Estate

FOWLER, S. The Farmers’ Loan & Trust Company, as successor trustee, has filed its account and asks for a construction of the following paragraph of testator’s will: “All the rest, residue and remainder* of my estate I give, devise and bequeath to my executors as trustees to divide in twenty-four equal parts and to receive the rents, income and profits of six of said equal parts and to pay over the same to my sister Nellie, wife of Joel Goldthwaite, for and during the period of her natural life. At her death I direct that such six twenty-fourths be divided into equal shares or parts, one part to be and become the property of the children of my brother Albert T. Rand, the other share or part to be and to become the property of my brother Jasper R. Rand.” The disputed question of construction relates to the share given to Jasper R. Rand. Nellie Goldthwaite, the life tenant, died in October, 1907. Jasper R. Rand died in July, 1900. Some of the heirs at law and next of kin of the testator contend that one-half of the remainder after the life estate of Nellie Goldthwaite, which is given by the testator to Jasper R. Rand, was contingent, and that as Jasper R. Rand died prior to the termination of the life estate, and there is no provision in the will for the disposition of the remainder in that contingency, it passed to the testator’s next of kin under the intestate laws. It does not seem to me that this contention is supported either by the language of the will, or the authorities construing wills which contained practically similar clauses. The law favors the vesting of estates ; it does not favor a construction that will result in intestacy. Those who contend for a construction that would make the remainder to Jasper contingent rely upon the words of the will which provide for a division of the estate after the termination of the life estate. But it has been held that such a direction will not in itself prevent the vesting of the estate, and that it merely shows an intent to defer the enjoyment of the estate until the happening of the event upon which the life estate is limited. Ackerman v. Gorton, 67 N. Y. 63; Hersee v. Simpson, 154 N. Y. 496, 48 N. E. 890; Connelly v. O’Brien, 166 N. Y. 406, 60 N. E. 20. I therefore hold that Jasper R. Rand took a vested remainder in three twenty-fourths of testator’s residuary estate. Costs taxed. Complete decree by inserting appropriate amounts.