Opinion · New York Court of Appeals

Tyson v. . Blake

22 N.Y. 558

Type: Opinion
Court: New York Court of Appeals
Jurisdiction: New York
Date: 1860-12-05
Topic: general

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 560 The principal question to be determined arises upon the construction of that part of the will which gives legacies to the testator's granddaughter, Mary Emeline Tyson, and to his grandsons, Aaron, Edwin, and Richard Tyson. The bequest is of one-fourth of the net proceeds of the testator's estate which should remain, c., to each of such grandchildren, the whole to be equally divided among them, share and share alike. But in case the said Mary Emeline should die without lawful issue, then her share was given to the three grandsons mentioned, to be equally divided among them, share and share alike, and to their heirs and assigns. It is claimed, in behalf of the defendants, that the limitation over of the share of Mary Emeline, in the event of her dying without issue, to the three grandsons, is void, as being repugnant to the gift to her of the one-fourth of the net proceeds of the estate.

Citator

Cited by: 38 opinions

TYSONv. BLAKE,22 N.Y. 558(1860)

TYSON, Executor, c.,v. BLAKEet al.

Court of Appeals of the State of New York.

December Term, 1860

Page 559

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 560

Nathan Dane Ellingwood,for the appellants.Richard Goodman,for the respondent.

WELLES, J.

The principal question to be determined arises upon the construction of that part of the will which gives legacies to the testator's granddaughter, Mary Emeline Tyson, and to his grandsons, Aaron, Edwin, and Richard Tyson. The bequest is of one-fourth of the net proceeds of the testator's estate which should remain, c., to each of such grandchildren, the whole to be equally divided among them, share and share alike. But in case the said Mary Emeline should die without lawful issue, then her share was given to the three grandsons mentioned, to be equally divided among them, share and share alike, and to their heirs and assigns. It is claimed, in behalf of the defendants, that the limitation over of the share of Mary Emeline, in the event of her dying without issue, to the three grandsons, is void, as being repugnant to the gift to her of the one-fourth of the net proceeds of the estate. But we do not think so. The provision, called the limitation over, is nothing other than a qualification of the previous gift to Mary Emeline, and shows the intention of the testator to have been that she should take, in the contingency named, a life estate only in the legacy thus given to her. It amounted to an executory bequest of her share to the three grandsons. If she died without issue, then they became entitled to her share absolutely. If she should die leaving issue, then such issue would take her share absolutely. There is, in fact, therefore, no repugnancy in the limitation over, the language employed being merely expressive of the intention of the testatorPage 561to make a disposition of the share of the granddaughter in the event of her dying without issue, different from what the law would make if she should die leaving issue. In the late case ofNorrisv.Beyea(3 Kern., 273), Judge DENIO, who delivered the opinion of the court, uses the following language: "There is, in truth, no repugnancy in a general bequest or devise to one person, in language which would ordinarily convey the whole estate, and a subsequent provision that, upon a contingent event, the estate thus given should be diverted and go over to another person. The latter clause, in such cases, limits and controls the former, and when they are read together, it is apparent that the general terms, which ordinarily convey the whole property, are to be understood in a qualified and not in an absolute sense."

Mary Emeline having died without issue, her share of the net proceeds of the testator's estate went, according to the terms of the will, to the three grandsons, Aaron, Edwin, and Richard Tyson. If these views are correct, the executors of the testator would have the right to withhold from Mary Emeline any portion of the principal of her share of the net proceeds of the estate, unless adequate security was given, or tendered, to account for the same in the event of her dying without lawful issue, together with interest thereon from the time of her death. She was entitled to the usufruct of the legacy during her life, and to nothing more. The advances to her guardian, referred to in the bond upon which the action was brought, were doubtless of the principal of her share; at least, nothing appears or is claimed to the contrary, and we are not to intend, in the absence of evidence, that the guardian would give a bond to refund what his ward was clearly entitled to receive and retain as her own absolutely. The bond was, therefore, precisely such a one as the executors were entitled to require upon advancing to Mary Emeline, or her guardian, the principal of her legacy, or any part of it.

The appellants make the further point that the action is not brought in the names of the real parties in interest. We are of the opinion, however, that the executor is the only partyPage 562who could sustain this action. The will requires the executors, or the survivors or survivor of them, immediately after the testator's death, to convert his estate, real and personal, into money, and after payment of debts, funeral expenses, and the legacy to the Dutch Reformed Church, the whole of the net proceeds which should remain is given to the four grandchildren of the testator, as before mentioned, and in the manner before specified. This clearly implies that the net proceeds of the estate must all come into the hands of the executors before it can reach the legatees. The former can, manifestly, pay it out to the legatees in no other manner or proportions than the will, by its legal effect, contemplates. Mary Emeline, as before shown, was only entitled to the use of one-fourth of what should remain of the estate, and not to the principal. If they should pay her more than she was entitled to receive during her life, they would be accountable for it. The executory legatees of the principal, of which she was entitled to the interest, could never look to her or her executors for such principal. There would be no privity between them, and they could only look to the executors of their grandfather. (Code, §§ 111, 113.)

The foregoing views lead to an affirmance of the judgment below.

COMSTOCK, Ch. J.

The testator, after providing for the payment of debts, c., gave his whole estate, as personal property, to his four grandchildren in equal shares. As to Emeline, one of them, the will then further provided that, in case she should die without lawful issue, her share should go to the other three. The primary bequest was of an absolute estate as to all of them, although no words of succession were used. Even in respect to land, such words are not now required in order to create a fee. (1 R.S., 748, § 1.) In respect to personal property, they were never necessary to pass an absolute interest. Emeline, therefore, took under this will more than a life estate. If she had left children, they would have taken, not as legatees of the testator, because nothing was given to them, but in successionPage 563to their mother and according to the laws of distribution, in other words, as her next of kin.

But a general bequest of personal estate, like a fee in lands, can be subjected to a limitation over on a condition which is not too remote. If the direction is that it shall go to another beneficiary, on a contingency which must happen at the death of the first taker, the limitation is within the rules of law, and will be sustained. In this case, the estate bequeathed to Emeline was to go to her brothers, "their heirs and assigns," in case she died without lawful issue. I think this would mean a definite failure of issue, that is, a failure at the time of her death, even according to a common law construction of the language. But this is not important. The statute now imperatively requires that construction to be given. (1 R.S., 724, § 22; id., 773, § 1.) The contingency, therefore, was not too remote, and the limitation over was good. This is well settled by authority. (16 N.Y., 83; Fearne on Rem., 470, 471; 2 Roper on Legacies, 369; 3 P. Wms., 258; 2 Atk., 642; 6 Bro. P.C., 309.) The supposed repugnancy between the two clauses in question does not exist. The first is a bequest of the entire thing intended to be given. The second is a substituted one, to take effect only on a contingency which might defeat the other. If there were any express words in the will importing that the primary legatee might consume or spend the whole fund bequeathed to her, then an attempt to give the same fund to another would be repugnant to the prior disposition. But there are no such words in this will.

It was the duty, therefore, of the executors to preserve the principal of the legacy from consumption or loss, so long as it was possible that the limitation over might take effect. For this purpose, I think they might exact security before paying the sum to the person primarily entitled. But the security was voluntarily given, and this action is well brought to enforce it. The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.Page 564