Levin v. Safe Deposit & Trust Co.

Bond, C. J., delivered the opinion of the court.' The question presented is one of construction of a will, to ascertain the effect of renunciation by the widow of the testator on bequests of interests in remainder. Principally, it is a question whether the loss of property to pass under the will resulting from withdrawal of the widow’s statutory share is to be divided equally between bequests of halves given in remainder, or is to be borne entirely by those who might have shared in one-half designated for enjoyment by the widow and her next of kin. Abraham Levin, deceased, bequeathed the rest and resi ⁴³ due of his property, after previous bequests, in trust to pay the income to his wife until her marriage or death, and provided for a division into halves upon either of those events. After a remarriage, the payment of income to the widow from one-half was to be continued until her death, and the other half was to be held by the trustee until a brother of the testator should become thirty years of age, when it should be paid over to him, with the income accumulated meanwhile.

And the will continued: “Upon the death of my said wife, said Trustee shall pay over, transfer and deliver one-half of my entire trust estate, in the event she has not remarried, or the one-half share held in trust for her in the event she has remarried,, to my wife’s next of kin in such portions as my wife shall by her Last Will and Testament direct and appoint; but if my wife shall die without having exercised such power of testamentary appointment, then at her death the said Trustee shall divide and distribute the said share of the estate to her next of kin. And the other one-half share, in the event my said wife has not remarried, shall be retained by my said Trustee upon the same trusts as hereinbefore set forth in respect to the one-half share to be retained by it in the event my wife should remarry.” “Should my said brother die before attaining thirty years of age, then upon his death, or the remarriage or death without having remarried of my wife, as the case may be, whichever shall last occur, said Trustee shall pay over, transfer and deliver said one-half share of said trust estate and all accumulations of income to my next of kin then living in the same proportions as though I had then died intestate owning the same.” There were no children of the couple, and the widow on her renunciation took one-half of all the estate as her share, in opposition to the will. Code, art. 93, secs. 127 and 311. The testator’s brother filed a bill in equity praying that the court assume jurisdiction of the administration, and determine the effect of the provisions of the will under the changed conditions, answers of the trustee and the widow were filed, the trustee merely submitting ⁴⁴ the questions to the court, and the-case was heard on the bill, the answers, and a stipulation of facts.

By the decree, the court held that the loss by diminution of property to be distributed should fall equally on beneficiaries of the two halves provided for, that the renunciation had not affected the remainders to the widow’s next of kin except equally with the brother’s remainder, by reduction of the amount distributable, and, on a further question, held that there had been no acceleration of the remainder in the testator’s brother, giving him the property under the will now, free of trust. This court takes a contrary view on the first and main