Opinion
April 15, 1929.
Ernest F. Griffin, for the petitioner.
This is an action to construe the will of John F. Dinkel. He devised by the 3d and 4th paragraphs of his will all the residue of his estate to trustees upon trust to pay his widow the income thereof for life.
The 4th paragraph is as follows:
"Fourth. I direct my said executors and trustees to pay over the net income of my said estate to my wife, Belle R. Dinkel, and as much of the principal as she may desire for and during her natural life.
"Upon the death of my said wife, Belle R. Dinkel, I direct my said executors and trustees to divide all the rest, residue and remainder of my estate into five (5) parts and pay over three (3) of said parts to my daughter, Helen Louise Spencer; one (1) of said parts to my wife's niece, Frances Axtell Sheridan, and one (1) of said parts to my sister-in-law, Mary R. Runkle."
One of the named remaindermen has died. The question is, did such remainderman take a vested estate at the testator's death?
It is my opinion that the remaindermen named in the will did not take a vested estate. Their interest comes into being at the death of the beneficiary of the trust and they take what is not used for the trust beneficiary. ( Tillman v. Ogren, 227 N.Y. 495, 505; Matter of Sweeney, 120 Misc. 663, 666; Matter of Hart, 122 id. 124; Matter of Ithaca Trust Co., 220 N.Y. 437; Matter of Limburger, 128 Misc. 577; Rezzemini v. Brooks, 236 N.Y. 184, 191.)
The above conclusion is supported by the earlier case of Leggett v. Firth ( 132 N.Y. 7). It is the court's opinion that the instant case falls within the line of cases which tend to enlarge the estate of the life tenant or beneficiary and limit the gift over to remaindermen. We must seek the intent of the testator from the words he has selected and the intent which the will expressly declares.
Submit decision and decree in accordance with these views.