Flanagan v. Staples

15 Citing cases

  1. Matter of Krooss

    99 N.E.2d 222 (N.Y. 1951)   Cited 97 times
    In Matter of Krooss (302 N.Y. 424) the testator bequeathed a remainder to his children with a proviso that, should either of said children die prior to the death of the life tenant "leaving descendants", said descendants should take the share of their parent.

    Over the years, the courts have uniformly held that language such as that used by the testator here, or language substantially identical, creates a vested remainder in fee subject to be divested by the remainderman's failing to survive the life beneficiary, if, but only if, such remainderman leaves issue or descendants surviving. (See, e.g., Staples v. Mead, 214 N.Y. 625, affg. 159 App. Div. 922, 152 App. Div. 745; Byrnes v. Stilwell, supra, 103 N.Y. 453; Livingston v. Greene, supra, 52 N.Y. 118; Smiley v. Bailey, 59 Barb. 80; Flanagan v. Staples, 28 App. Div. 319; Gray v. Garman, 2 Hare 268; Matter of Bright's Trust, 21 Beav. 67; Remmers v. Remmers, 280 Ill. 93; see, also, Note, 109 A.L.R. 5.) Staples v. Mead ( supra, 214 N.Y. 625, affg. 159 App. Div. 922, 152 App. Div. 745) furnishes a helpful precedent. The testator gave the residue of his estate to executors in trust for the life of his wife, with directions to pay one third of the income to her, one third to her daughter Sarah and one third to grandchildren of testator, living at his death and to the estate of any grandchild who died leaving issue.

  2. Marsh v. Consumers' Park Brewing Co.

    162 App. Div. 256 (N.Y. App. Div. 1914)   Cited 2 times

    Teed v. Morton ( 60 N.Y. 502), where the will provided for distribution of money to a class after death of the life tenant. Flanagan v. Staples ( 28 App. Div. 319), where upon the death of the wife all the estate was given to the children, and in the event of the death of any of them leaving issue, the issue should take the share "which the parent would have taken if living." Weymann v. Weymann ( 82 App. Div. 342), where without other discussion of intention Lyons v. Ostrander is cited and followed.

  3. Robinson v. Martin

    138 App. Div. 310 (N.Y. App. Div. 1910)   Cited 2 times
    In Robinson v. Martin (138 App. Div. 310; affd., 200 N.Y. 159) this court and the Court of Appeals interpreted the words there used, "Upon the death of my said son, I give, devise and bequeath the said share to my unmarried daughters in equal shares," as applying to the condition existing at the cessation of the life estate, and decided that the bequest was to the daughters who were then unmarried, excluding three other daughters who had been married prior to the falling in of the life estate.

    It may be assumed, as contended by the respondent, that upon the death of the testatrix the remainder vested in the then unmarried daughters, but it was subject to be divested by their marrying before the death of the son. ( Lyons v. Ostrander, 167 N.Y. 135; Weymann v. Weymann, 82 App. Div. 342; Flanagan v. Staples, 28 id. 319.) Three of them did marry, and by so doing their interest became divested and the same vested in the two unmarried daughters, who are entitled to the trust fund.

  4. Schwartz v. Rehfuss

    129 App. Div. 630 (N.Y. App. Div. 1908)   Cited 7 times

    The title of Annie Schwartz under the foreclosure was no better than that obtained by Potruch, and it follows that the plaintiff was unable to give a good title to the property, and judgment may be entered in favor of the defendant in accordance with the terms of the stipulation. (See Lyons v. Ostrander, 167 N.Y. 135; Flanagan v. Staples, 28 App. Div. 319.) WOODWARD and MILLER, JJ., concurred; GAYNOR, J., read for judgment for the plaintiff, with whom JENKS, J., concurred.

  5. Weymann v. Weymann

    82 App. Div. 342 (N.Y. App. Div. 1903)   Cited 3 times

    The proper construction of the will is, we think, giving due weight to all of its provisions, that the remainder was not to be divided until the death of the widow of the testator and that, while doubtless upon the death of the testator it vested in interest immediately in his children, it was subject to be divested by their not surviving his widow, in which event it became vested in interest in the issue of a deceased son or daughter dying before the widow and became vested in possession upon her death; in other words, the appellant took by substitution the interest which his father would have taken if living at the time of the death of the widow of the testator. ( Flanagan v. Staples, 28 App. Div. 319; Lyons v. Ostrander, 167 N.Y. 135; Jacobson v. Smith, 73 App. Div. 412. ) It follows that the respondent Stopenhagen has no interest in the estate by reason of the mortgage.

  6. Lyons v. Weeks

    53 App. Div. 212 (N.Y. App. Div. 1900)

    ed rules of construction, because Clarissa died before the life beneficiary; in other words, it is contended that Clarissa, upon the death of Jacob Weeks, took a vested remainder, which, upon her death — it having occurred before that of the life beneficiary — passed under her will, subject to the life estate or interest of the life beneficiary. It is undoubtedly true that Clarissa took a vested remainder upon the death of Jacob Weeks, but this remainder was, according to his intent, to be divested by her death, if it occurred prior to the death of his adopted son. As before indicated, she died before the life beneficiary, and thereupon her interest was divested and it passed to her children. Giving this construction to the clause of the will under consideration, the intent is carried out, and I do not think such construction conflicts, in any way, with the rule above alluded to or is in hostility to any decisions to which our attention has been called. It certainly is in harmony with Flanagan v. Staples ( 28 App. Div. 319), recently decided by this court. In the Staples case the testator gave to his wife the income from certain property, during her life, and the will then provided: "Upon the death of my said wife, I give, * * * all my said estate and property unto my children in equal shares.

  7. Matter of Arkell

    22 Misc. 2d 293 (N.Y. Surr. Ct. 1959)   Cited 1 times

    Only those members of the class who survive the termination of the life estate share in the remainder. ( Marsh v. Consumers Park Brewing Co., 220 N.Y. 205; Schwartz v. Rehfuss, 129 App. Div. 630, affd. 198 N.Y. 585; Flanagan v. Staples, 28 App. Div. 319.) Schwartz v. Rehfuss ( supra) is particularly in point here.

  8. Matter of Weekes

    174 Misc. 930 (N.Y. Misc. 1940)   Cited 9 times
    In Matter of Weekes (174 Misc. 930, 931-932, affd. 260 A.D. 101 4), Surrogate FOLEY pointed out that "Ordinarily, a gift to issue per stirpes creates a contingent remainder" and stated: "In that case (Schwartz v. Rehfuss, 129 A.D. 630, affd. 198 N.Y. 585) the testator created a life estate for the benefit of his wife.

    Only those members of the class who survive the termination of the life estate share in the remainder. ( Marsh v. Consumers Park Brewing Co., 220 N.Y. 205; Schwartz v. Rehfuss, 129 A.D. 630; affd., 198 N.Y. 585; Flanagan v. Staples, 28 A.D. 319.) Schwartz v. Rehfuss ( supra) s particularly in point here. In that case the testator created a life estate for the benefit of his wife.

  9. Matter of John B. Trevor

    120 Misc. 22 (N.Y. Surr. Ct. 1922)   Cited 9 times

    Estates may vest, subject to being divested. Moore v. Littel, 41 N.Y. 66; Flanagan v. Staples, 28 A.D. 319. The object of the court is to ascertain, not the intention simply, but the expressed intention of the testator, i.e., the intention which the will itself, either expressly or by implication, declares.

  10. Matter of Munroe

    107 Misc. 408 (N.Y. Surr. Ct. 1919)   Cited 3 times

    That legacies may vest subject to being divested is held in many cases. Flanagan v. Staples, 28 A.D. 319, is directly in point. That was a case where testator gave his property in trust to executors to pay the income to the widow during her life, with power to resort to the principal in case of need, for her support.