Opinion
Argued February 8, 1911
Decided February 21, 1911
George Gordon Battle for plaintiff appellant.
Kenneth C. Kirtland for Frank V. Tilford, defendant appellant.
Edward Bruce Hill for Elizabeth T. Keferstein, defendant appellant.
Alton B. Parker and J. Markham Marshall for Hunt T. Dickinson, respondent.
John Brooks Leavitt for Henry M. Tilford, as executor, respondent.
Stuart G. Gibboney for Richard C. Tilford, respondent.
We concur in the opinion of the Appellate Division ( Chastain v. Tilford, 138 App. Div. 746) in saying that the several parts of the will are not so intermingled or interdependent that the bequests that offend against our statutes cannot be separated from the bequests that are made in conformity therewith. The predominant purpose of the testatrix, as shown by her will, was to give to each of her children then living the use of one-fifth of the residue of her estate for life. For reasons not expressed in the will she chose to limit the bequests to her three children, Richard, Edward and Mary, to the "rents, issues and profits quarterly" of such one-fifth of the residue of her estate for their lives respectively, while she chose to make the bequests to each of her children Wesley and Henry absolute. Her purpose to that extent is clearly stated in language and form that in no way offends against any provision of the existing statutes. Her ultimate purpose, if it could be fully carried out, was to give all of the principal of said residue to Wesley and Henry and their heirs, except that it was also her purpose that Hunt Tilford Dickinson, her great grandson, should have the principal of the one-fifth held for her daughter Mary and one-twentieth plus one-fifteenth plus one-sixtieth of the estate from the shares held for Richard and Edward respectively conditioned upon his living until he was twenty-five years of age.
She did not, as appears from her express language, intend that the children of her said deceased son should receive any of such residue. The division of the principal held in trust for her said three children respectively, after the death of either was intended to be a division of such particular part of principal independently of the prior division of the residue, and it should be sustained as a separate part of the testatrix's scheme, and such sub-shares should be paid over or held respectively according to the provisions of the will until the expiration, in the case of each trust, of the term of two lives in being at the death of the testatrix. Such construction includes holding the sub-share or shares for her daughter Mary for life, because the life estate for her is, as to such sub-shares, wholly independent of the trust or other estate for Hunt Tilford Dickinson, which only takes effect on the death of his grandmother. We are the more inclined to the construction stated by the Appellate Division because it approximates more nearly than any other to the ultimate purpose of the testatrix. It was the intention of the testatrix to bequeath to each of her living children an equal enjoyment of the residue of her estate during their lives. It was not her purpose to make her bequests generally equal among her children The bequests to them of principal were intended to be unequal even to the exclusion of some of them.
A construction of the will that would require that a division of the shares of Richard and Edward respectively be made upon the death of either among the next of kin, as in case of intestacy, would include in such division the children of such deceased son; and although the division would be of the principal, it would reduce the amount that could be enjoyed for life by the children, and the ultimate amount to be received by Wesley and Henry and their heirs not only under the will unrestricted by our statute provisions, but also under the construction of the will provided by the judgment, and by directing such division of the shares of Richard and Edward it would interfere pro tanto with the purpose of the testatrix.
By the judgment appealed from, the purposes of the testatrix as expressed in her will are stated in independent and severable parts, and so far as they do not offend against our statutes they are sustained, and thereby her general scheme for the disposition of her property is substantially preserved.
The judgment should be affirmed, with costs to the respondents payable out of the estate.
CULLEN, Ch. J., HAIGHT, VANN, WILLARD BARTLETT, HISCOCK and COLLIN, JJ., concur.
Judgment affirmed.