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(39 Misc. Rep. 733.)

LANGLEY v. WESTCHESTER TRUST CO. et al. (Supreme Court, Special Term, New York County. February, 1903.) 1. WILL-CONSTRUCTION.

Testator divided his residuary estate equally between his sister and his two brothers. Held, that the share of a brother, who died before the testator, went to testator's next of kin, and did not pass to the survivors as a class. Action by Edward D. W. Langley against the Westchester Trust Company and others to construe a will. Decree rendered.

Burr & Davidson (Clarence L. Barber, of counsel), for plaintiff.
Remsen & Parsons, for Westchester Trust Company.

Forster, Hontling & Klenke (Wm. G. Choate and George A. Hotaling, of counsel), for Louis V. Sone.

Sidney Ward, in pro. per. and for Barker, executoi.

Mannice, Abbott & Perry (Everett V. Abbott, of counsel), for Catherine C. K. Hagen.

TRUAX, J. Francis C. Flemming made his will in 1880. At that time his father, Thomas Flemming, his mother, Frances A. Flemming, his brothers, Walter Flemming and Henry Flemming, and his sister, Anna Flemming Kimball, were living. He provided in his will that the executors therein named should convert all his property into money, and that the executors should purchase $50,000 of bonds and hold them in trust during the life of one Mary F. Čowie, she to receive the income thereof during her life, and after the death of the said Mary F. Cowie the testator bequeathed the $50,000 of bonds so to be purchased to his sister, Anna Flemming Kimball, and his two brothers, Walter and Henry Flemming, to be equally divided between the three, share and share alike. The testator gave, devised, and bequeathed the rest, residue, and remainder of his estate, real and personal, in trust to his executors, who were to pay the income of said estate to the testator's father and mother in equal proportions during their lives, and, after the death of either, to pay to the survivor the whole of said income derived from such residue during the life of such survivor. And on the death of both father and mother he gave all the said estate to his sister, Anna Flemming Kimball, and to his brothers, Walter Flemming and Henry Flemming, their heirs and assigns, to be equally divided between them, share and share alike. The above-named Walter Flemming died before the testator, Francis C. Flemming, and when the testator died his father and mother and his brother Henry, and sister, Anna, were living. The question to be determined here is, did the testator die intestate as to the one-third of the estate bequeathed to his brother Walter Flemming, or did it go to the survivors, Anna Flemming Kimball and Henry Flemming, share and share alike? I am of the opinion that said Francis C. Fiemming died intestate as to the one-third of the estate bequeathed to his brother Walter Flemming. Savage v. Burnham, 17 N. Y. 561; Beekman v. Bonsor, 23 N. Y. 298, 80 Am. Dec. 269; Downing v. Marshall, 23 N. Y. 366, 80 Am. Dec. 290; Everitt v. Everitt, 29 N. Y. 39; Embury and 114 New York State Reporter V. Sheldon, 68 N. Y. 227; Stevenson v. Lesley, 70 N. Y. 512; Monarque v. Monarque, 80 N. Y. 320; Delafield v. Shipman, 103 N. Y. 463, 9 N. E. 184; Matter of Wells, 113 N. Y. 396, 21 N. E. 137, 10 Am. St. Rep. 457; Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177; Matter of Seebeck, 140 N. Y. 241, 35 N. E. 429; Matter of Kimberly's Estate, 150 N. Y. 90, 44 N. E. 945; Moffett v. Elmendorf, 152 N. Y. 475, 46 N. E. 845, 57 Am. St. Rep. 529; Matter of Brown, 154 N. Y. 313, 48 N. E. 537; Matter of Russell, 168 N. Y. 169, 61 N. Ě. 166.

In Matter of Russell, 168 N. Y. 169, 61 N. E. 166, the testator, James Russell, gave, devised, and bequeathed to his wife and children all the rest, residue, and remainder of his estate, to be divided equally between them, share and share alike; that is to say, to his wife one share, and to each child an equal share with his wife. He died leaving behind him surviving his widow and five children. One of his children married one James K. Black, and died thereafter without issue and intestate. The question before the Court of Appeals in the case above cited was what disposition should be made of the share of the residuary estate of the child so dying, and it was held that the devisees did not take as a class, but that each took distributively.

In Moffett v. Elmendorf, 152 N. Y. 475, 46 N. E. 845, 57 Am. St. Rep. 529, the devise was "to my aunt, Catherine Elwell, and my cousins, Mary S. Elmendorf, John D. Elwell (and others), each to take an equal share therein," and it was held that the beneficiaries took distributively, and not collectively, and that the lapsed devises went into the residuum of the estate, and not to the survivors. In Matter of Kimberly's Estate, 150 N. Y. 90, 44 N. E. 945, the testator gave, devised, and bequeathed all his estate, real and personal, of whatsoever kind, wheresoever situated, unto his three sisters, Mary, Annie, and Louisa. Mary died before the testator died. It was held that the words above mentioned constituted, by force of the statute (1 R. S. (1st Ed.] pt. 2, c. 1, tit. 2, p. 727, § 44), a tenancy in common, and not a joint tenancy or a bequest to a class. It was also further held that the statute above referred to applied to personal as well as real estate. Mr. Justice Martin, in writing the opinion of the court, said: “The canon of interpretation to the effect that, if there are two modes of interpreting a will, that is to be preferred which will prevent total or partial intestacy, has no application here. The statutes and decisions are controlling, and cannot be changed or rendered nugatory by any mere rule of construction.” And to the same effect are the other cases above cited. I am of the opinion that onethird of the estate of Francis C. Flemming lapsed, and that Thomas Flemming, the father of Francis C. Flemming, took the said onethird of said Francis C. Flemming's estate as the sole next of kin of said Francis C. Flemming.

While the agreement of February 9th is an agreement to convey all the interest of Mrs. Skinner in the estate of Thomas Flemming, it did not convey. All that was in fact done by the parties to the agreement of February 9th is shown by the receipt signed by Mrs. Sutherland a few days after the execution of the agreement of February 9th, in which receipt Mrs. Sutherland uses the following language: "The foregoing being all the properties and assets agreed to be transferred or conveyed to me by the said Frances A. Skinner under the agreement bearing date February 9, 1893, after the payment of costs and counsel fees and the debt due from the estate of Thomas Flemming to the estate of Francis C. Flemming." This was the instrument that closed the transaction, and, if there was any ambiguity in the agreement of February 9th, it was resolved by this receipt. It is also to be noticed that the instrument of February 9th makes no reference to the interest of Mrs. Skinner in the principal of the estate of Francis C. Flemming, while it does specify with great definiteness the property which it intended to transfer. For the reasons above stated I am of the opinion and I decide that the interest given and devised to Walter Flemming by Francis C. Flemming lapsed by the death of the said Walter Flemming prior to the death of the said Francis C. Flemming, and passed into the residuary estate of said Francis C. Flemming; that on the death of the said Francis C. Flemming his father, Thomas Flemming, succeeded to that interest as in cases of intestacy; that such interest is now owned by the plaintiff in this action; that as to the personal property the defendant the Westchester Trust Company should account to plaintiff as owner of onesixth thereof except the corpus of the fund of $50,000, the income of which was to be paid to Mary F. Cowie during her natural life; that as to that fund the plaintiff has a vested estate in remainder to such portion thereof as passed on the death of the said Francis C. Flemming to Thomas Flemming; that as to the real estate the plaintiff has a vested estate in fee of one-half of that portion that was devised to Walter Flemming; and that the plaintiff is entitled to costs and an extra allowance, payable out of the estate.

Ordered accordingly.

(39 Misc. Rep. 738.)

PUTNAM v. LINCOLN SAFE-DEPOSIT CO. et al. (Supreme Court, Special Term, St. Lawrence County. February, 1903.)

1. TRUST-MINGLING MONEYS OF BENEFICIARIES - ADMISSIONS OF TRUSTEE.

In an action in another state a foreign will had been declared to create in the husband of a child of the testator a valid active trust for her benefit and that of her children, with remainder to them in fee after her death. The husband and wife resided in New York, and dealt with the estate as if it belonged to the wife and the children, disregarding the trust, and the husband put trust securities in the name of the wife, and bought new securities with trust moneys in her name, and kept a joint bank account, and had access to the trust securities, which were kept with the defendant security company. After the husband's death, which preceded that of his wife by about ten months, a statement was found of the trust estate, which showed the amount thereof, and that the commissions and expenses of the trustee had been paid, and that certain securities belonged to the trust estate. There was also found a note by the wife to the husband as trustee, which balanced the account. Held, that such statement was competent evidence against the wife and her estate to show the true

ownership of the securities found. X SAME-TRANSACTION WITH DECEDENT.

Where a husband, trustee for his wife and children, together with his wife, treated the estate as her own, and made a written statement while his wife was living as to the condition of the trust estate, on his subsequent death, followed by hers, such statement was admissible as against

SO N.Y.S.--61

and 114 New York State Reporter the estate of the wife, and was not incompetent under Code Cir. Proc. $ 829, on the ground that the trustee, if living, would be an incompetent witness against her estate. Action by Robert M. S. Putnam against the Lincoln Safe-Deposit Company and others. Motion to confirm report of referee. Modified and approved.

Albert Stickney and Otto C. Wierum, Jr., for plaintiff.
Samuel Hoff, for Safe-Deposit Company.

Edgar T. Brackett and Nash Rockwood, for defendant John R. Putnam.

C. H. Sturges, in person and for Israel Putnam.
Corliss Sheldon, for administrator of John R. Putnam.

KELLOGG, J. The interlocutory judgment herein (34 Misc. Rep. 333, 69 N. Y. Supp. 808, 66 App. Div. 136, 72 N. Y. Supp. 968) establishes that Judge Putnam was trustee for his wife and her children under the will of Robert M. Shoemaker, his wife's father, and the only question here is to determine whether certain property belonged to Mrs. Putnam, and goes by her will to one of her sons, or belonged to the trust estate, and goes under her father's will to her three sons. The referee has found the property belongs to the trust estate. No persons are interested in the question except the three sons. The report of the referee is so full and convincing as to his reasons that it is necessary to say but little in addition to it. The will in question was an Ohio will, and notwithstanding the fact that the Ohio courts had decided before this property came to Justice Putnam that there was a valid trust, and that he took title as trustee, it is evident that Judge Putnam acted in the administration of the estate to quite an extent, in the belief that there was no legal trust, and that he was simply the manager of the estate for the benefit of his wife, and that the children were to have what was left of it at her death. From the answer of Mrs. Putnam and the conduct of the estate it is evident that she also took this same view of the situation. Mrs. Putnam survived her husband but a very short time, and consequently this case rests to quite an extent upon inferences to be drawn from the few facts which are established. We find almost immediately after the receipt of the trust property a box in the defendant Safe-Deposit Company's vault is rented in the name of John R. or Mary S. Putnam, to which box both of said parties had free access at all times, and in this box most of the securities in question were found. Almost immediately after the receipt of the trust property a bank account is opened in the name of John R. or Mary S. Putnam, in which the trust income, his salary as justice, and her small private income, as well as his small private income, are deposited, and also moneys received at different times from a sale of trust securities. This account was checked upon by either party at will for personal, housekeeping, investment, or other purposes. No other bank account was used for the trust estate or by either of the parties except until about May, 1888, a small account was kept by J. R. Putnam as attorney. After the commencement of this action there was found in this safe-deposit box about $70,200 in securities, mostly certificates of corporate stocks registered in the name of Mary S. Putnam, which, from the identity in amount and name of each security, are easily identified as the same securities which were received by the trustee from the Shoemaker estate. The coupon bonds remained in the same condition in which they were received by the trustee. The registered bonds had been changed to the name of Mary S. Putnam. The certificate, representing a large amount of these stocks, was issued in the name of Mary S. Putnam, November 1, 1887, almost immediately after the trustee received them. We also find in this box new securities standing in her name to the amount of $64,890. Some real estate, concededly the property of the trust, was transferred from the name of the trustee to that of his wife. An account book is found, evidently containing many accounts with various persons before Judge Putnam became trustee. And here is found an account in the name of John R. Putnam, trustee, in which he entered the receipts of income from the trust, his salary as justice, her small personal income, and his private income. The pages torn from this book deprive us of a part of this account, and also of his inventory of the trust property, which, from the index, we infer was upon some leaves which have been torn out. It is possible this account, if inviolate, might have shown a sale of the trust securities and other valuable information. Just before Judge and Mrs. Putnam were about to take an ocean voyage for his health, and from which he did not return, he prepared a statement of the trust fund (Exhibit 27), and left it in his safe, together with a note given by his wife to him as trustee for $36,987. The amount of this note just balances the account as he made it. The note is found with the account, and it is not quite clear whether her will accompanied them or not. This statement shows that the original securities standing in the name of Mary S. Putnam in the safe-deposit box are a part of the trust estate, and also that the new securities found in said box have been purchased to take the place of trust securities which had been sold. The statement charges him with the securities received from the Shoemaker estate, shows that his commissions and expenses have been paid, and that these securities are the trust securities. This statement is absolutely conclusive in this case if it is evidence against Mrs. Putnam and her estate. Judge Putnam had particular knowledge of all the facts stated. In charging himself with over $200,000 of securities, and acknowledging payment of his expenses and commissions, the statement was a declaration against his interest, and thus became evidence for what it is worth as to all parties and all its contents. Steph. Ev. art. 28. The facts in this case verify and confirm the contents of that statement. Mrs. Putnam has put herself in a position with reference to this trust estate that makes it easy for a court of equity to determine what constitutes the trust fund so far as she and her estate is concerned. She is certainly chargeable with knowledge of the trust; that the securities of the trust practically all stand in her name, and began at least to be changed to her name within two months after the trustee received them, and that those payable to bearer were with the others in a box in which she was joint lessee, and to which she had free

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