Opinion
November 29, 1927.
George D. Forsyth, for the petitioner.
H.F. Remington, for the respondent.
In this proceeding, to compel the payment of a legacy, it appeared that the above-named testatrix died January 16, 1924, leaving a last will, in the 4th clause of which she provided as follows:
"IV. To my foster sister, Mrs. Charles Gilbert of Auburn, N.Y., I give and bequeath the sum of five hundred dollars ($500.00) and also the income upon five hundred dollars ($500.00) to be paid by my executors to my said sister Mrs. Charles Gilbert for and during the term of her natural life, the remainder of such sum of five hundred dollars ($500.00) to be paid over upon her death to her granddaughter, Ina May Dickinson of Auburn, N.Y.
"In case said Ina May Dickinson shall not be living at my death, then such remainder to revert to my estate."
It also appeared that the foster sister had died before the testatrix. The residue is now claimed by the granddaughter. The only question presented by counsel on this submission is whether the residue lapsed, as did the legacy of the income. The petitioner claims it did not; and the respondent executors upon the argument asked for time to submit authorities to the effect that both legacies lapsed at the death of the foster sister, the legatee of the income for life; but upon the submission admitted the petitioner was correct in invoking the general rule that "if property be limited upon the death of one person, to another, by will, and the first donee happened to predecease the testator, it has been held that the gift over will take effect notwithstanding the failure, by lapse, of the prior gift. And this applies whether the gift over of the legacy or share is to take effect on the death of the prior legatee generally or on the death under particular circumstances, and whether the legacy is immediate or in remainder." (28 R.C.L. 337, citing Robison v. Portland Female Orphan Asylum, 123 U.S. 702; Frelinghuysen v. N.Y. Life Ins. Trust Co., 31 R.I. 150; Ann. Cas. 1912B, 237.)
The same publication states elsewhere that "it is the general rule, but by no means an invariable rule, that where a preceding estate is made to depend upon a contingency which never happens, the contingency affects only the estate to which it is annexed and does not extend to the ulterior limitations; the mere lapsing of intervening estates will never be allowed to defeat the remainder over unless they be coupled with conditions upon which the subsequent limitations are in some way made to depend." (Citing Pennington v. Pennington, 70 Md. 418; 3 L.R.A. 816.) "* * * It is a question in each case of the reasonable interpretation of the words of the particular will, with a view of ascertaining through their meaning the testator's intention. If it appears to have been the testator's intention not to extend the contingency beyond the estate to which it is annexed it will be limited to that estate and will not extend to the ulterior limitations. If, however, the testator seems to have contemplated no distinction between that estate and those which follow it, the contingency will equally affect the whole ulterior train of limitations." (23 R.C.L. 554, citing Robison v. Portland Female Orphan Asylum, supra.)
Our Court of Appeals applied this general rule in 1908 in the case of U.S. Trust Co. v. Hogencamp ( 191 N.Y. 281, 284), citing four prior cases before the same tribunal.
Whatever debate there might be on the point whether this testatrix ever actually contemplated the death of her foster sister before her own, there can be no doubt that she did actually contemplate the possibility of the death of the foster sister's granddaughter before her own, and did provide for such case, in the last sentence of this 4th clause, by saying, in effect, that the only contingency that could defeat this remainder would be the death of the remainderman before the death of the testatrix herself; and the implication of so saying is that if the remainderman outlived testatrix, the remainder should be hers. Nowhere does testatrix say that the remainder is to be the granddaughter's if she survive her grandmother, the foster sister. Favoring the vesting of remainders, the most the courts will read out of the word "remainder" in this context is "after," rather than "if."
I dare say that even had this last sentence not been appended to this clause, the result would have been the same, under the general rule above quoted. I conclude, therefore, that the petitioner is entitled to this remainder. Interest thereon was waived on the argument.
Let a decree be entered accordingly, providing also for costs to the petitioner in the sum of twenty-five dollars.