MATTER OF McKIM, N.Y. Misc., Judgment, Law, casemine.com

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Attorney(S)

Stewart Shearer, for petitioner. Adam Wiener, for Remsen McKim. Julius Miller, special guardian.

Judges

FOLEY, S.

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Smart Summary

Factual and Procedural Background

This accounting proceeding arises from the construction of Paragraph 4 of the will of Robert J. McKim, deceased, who died on October 20, 1915. The will created a trust of $100,000, with income payable to certain life beneficiaries. Specifically, one-fourth of the trust ($25,000) was to pay income to the testator's son, Robert A. McKim, for life, and upon his death, the principal was to be divided equally among all surviving grandchildren per capita, not per stirpes, in fee simple. At issue is whether a grandchild who predeceased the life tenant but left surviving children had a vested interest in the principal, or whether only grandchildren surviving the life tenant are entitled to the trust principal. The life beneficiary died May 14, 1920; one grandchild died in 1918 leaving two infant children; the others survived the life tenant.

Legal Issues Presented

Whether the deceased grandchild who predeceased the life tenant had a vested interest in the principal of the trust fund.
Whether the principal of the trust is payable only to the grandchildren who survived the life tenant or to all grandchildren who survived the testator.
Whether the distribution of the trust principal should be made per capita or per stirpes.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Buechner, 226 N.Y. 440	Definition and treatment of contingent remainders and class gifts.	Used to establish that the remainder interests were contingent and that the class gift must be confined to members living at the time of division.
Matter of Crane, 164 N.Y. 71	Clarification of contingent remainder interests.	Supported the conclusion that the grandchildren's interests were contingent remainders.
Matter of Baer, 147 N.Y. 348	Class gift membership determined at time of distribution.	Confirmed that the gift was to a class and limited to surviving members at the time of division.
Matter of Kimberly, 150 N.Y. 90	Timing for determining members of a class gift.	Reinforced that only grandchildren surviving the life tenant are included in the class.
Matter of Phipard, 182 A.D. 357; affd., 223 N.Y. 676	Interpretation of the word "children" in wills excluding grandchildren unless expressly included.	Supported the court's interpretation that "grandchildren" did not include great-grandchildren or more remote descendants.

Court's Reasoning and Analysis

The court analyzed the trust provision, focusing on the language regarding the remainder interest to the grandchildren. It noted that the gift was to a class of grandchildren, with no words of present gift but only a direction to divide upon termination of the trust, making the remainders contingent. Citing established precedents, the court held that the class membership is fixed at the time of distribution—that is, when the life tenant died. The testator’s use of per capita distribution and the absence of any gift over in case of a grandchild’s death indicated an intention to exclude grandchildren who did not survive the life tenant. The court rejected a stirpital distribution and held that the grandchildren who survived the life tenant alone take the principal. It also emphasized that the testator’s use of the word "grandchildren" did not extend to great-grandchildren or more remote descendants. The court relied on the primary canon of construction: effectuating the testator’s intent as expressed in the will’s language.

Holding and Implications

Holding: The court decreed that only the grandchildren who survived the life tenant are entitled to the principal of the trust fund, distributed per capita, excluding grandchildren who predeceased the life tenant even if they left surviving descendants.

Implications: This decision clarifies that contingent remainder interests in a class gift are limited to members surviving the termination of the preceding estate (the life tenant) and affirms that the testator’s expressed intention to distribute per capita excludes representation by descendants of deceased class members. No new legal precedent was established beyond the application of existing principles to the facts.

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Matter of the Estate of ROBERT J. McKIM, Deceased.

FOLEY, S.

In this accounting proceeding a question of construction arises. Paragraph 4 of testator's will gave the sum of $100,000 in trust to the accounting trustee, the income of which was to be paid to certain life beneficiaries, and further provided in part as follows: "* * * A. The interest on one such fourth part or twenty-five thousand dollars ($25,000) unto my son Robert A. McKim for and during his life, and upon his decease the said trust, with respect to such part, shall terminate and the principal of such fourth part shall be equally divided among all my surviving grandchildren per capita (not per stirpes), share and share alike, absolutely in fee simple. * * *"

The testator died October 20, 1915, leaving him surviving eight grandchildren. The life beneficiary died May 14, 1920. One of the grandchildren, Mary McKim Daingerfield, died October 22, 1918, leaving her surviving two infant children. The other grandchildren survived the life beneficiary. The question is, therefore, whether the deceased grandchild had a vested interest in the principal of the trust fund or whether the fund is payable only to the grandchildren who survived the life tenant. In other words, do the grandchildren who survived testator or those who survived the life beneficiary take? There are no words of present gift. The only words of gift are contained in a direction to divide and pay over at a future time upon the termination of the trust. These remainders are contingent remainders. Matter of Buechner, 226 N.Y. 440; Matter of Crane, 164 id. 71. The gift was to a class and must be confined to the members of the class living at the date when the division is directed to be made. Matter of Baer, 147 N.Y. 348; Matter of Kimberly, 150 id. 90. The intention of the testator seems clear. There is no gift over in the event of the death of any of the grandchildren, and the distribution ordered among the class designated is per capita and not per stirpes. This clearly indicates the testator's intention to include only those grandchildren who survived the life tenant. The three trusts created were for the benefit of his children. They were the immediate objects of his bounty, not the ulterior remaindermen. The remainder was given in each instance not to the issue of each life beneficiary, but to all his surviving grandchildren at the termination of each trust.

The general rule is that the word "children" does not include grandchildren or remote descendants unless there is something in the will to show that the word was used in the broader sense. Matter of Phipard, 182 A.D. 357; affd., 223 N.Y. 676. There is no indication in the language of testator's will of an intention to extend the word "grandchildren" used by him to his great-grandchildren or more remote descendants. A stirpital distribution is forbidden by the testator. As stated by Judge Cardozo in Matter of Buechner, supra, 443: "This is no case again for subtle distinctions between directions to pay or distribute and words of present gift. * * * Such tests may help to ascertain the membership of a class not otherwise defined. There is no need to resort to them when the testator has defined the membership himself. * * * We need no canon of construction to justify that holding except, indeed, the primary one, to which all others are subordinate, that the intention of the testator is to be sought in all his words, and, when ascertained, is to prevail."

Decreed accordingly.

MATTER OF McKIM