Sabbaton v. Sabbaton

Upon this appeal the respondents expressly rest their case upon the construction of the will given by the court below. The question arising upon that construction is, then, the only one for examination. I.am unable to find in this will any indication of any intended trust for any grandchildren of the testator. By the will the trust is made “for the benefit of each said son.” There were no grandchildren living, and the whole care of the testator, as evinced by the will itself, is for the protection of the widow and the two sons. In the third paragraph of the will he directs that, upon the death of ,a son before distribution, his share, both income and principal, shall be paid and distributed equally to and among his issue. Here are express words of gift to the issue ofv any son immediately upon the death of that son. In the very next clause of the will he provides, in case of the death of one of his sons without issue, not that the share of the son so dying shall be given to the other son absolutely, but shall “be held in trust arid paid over to the surviving son in the,same manner as hereinbefore.provided.” This clause, following immediately the provision for the gift to the issue upon the death of a son, would seem to render more clear the intent of the testator that upon the death of a son, leaving issue, an absolute gift of the property is intended to the issue. The duration of the trust is dependent upon the life of the younger son. Primarily, it is measured by his arriving at the age of 35 years. There is no direction that it shall be continued for two lives in being. The provision that it shall, in any event, terminate not later than upon the death of two beneficiaries, simply places a limit upon the duration of the trust, and was probably inserted to avoid a possible legal objection. The respondents argue that because, at the death of a son, “both income and principal” are given to the' issue, is indicated an intent that the trust shall continue, and that the income only shall be given until *505the termination of the trust. It is clear that this ■ inference is not authorized in the face of an express gift to the issue. The word “income,” as there used, may have referred to accumulated income, or may have been used, in connection with the word “principal,” as a-sweeping clause, to include everything which was held in trust for the father. The case of In re Moloughney, 67 App. Div. 148, 73 N. Y. Supp. 598, which is cited for the respondents, is not entirely irrelevant. There were, however, provisions in that will which were of controlling influence which do not appear in the will in the case at bar. The words of gift there, in case of death before the time of distribution, were of the share “to which the parent of such issue would be entitled if living.” If living, the parent would not be-entitled to the principal, but simply the income. I am unable to-find any justification in this will, or in the circumstances under which it was made, for refusing to give to the words of absolute gift to the issue- of a son who should die before distribution the significance-to which those words are naturally entitled.

Counsel for respondents concedes in his brief that the construction of the will thus given authorizes this action. I therefore advise a-reversal of the judgment below.

Judgment reversed, and' new trial granted, with costs to appellant to abide event. All concur.