Wiesenfeld v. Rosenfeld

Sloan, J., delivered the opinion of the Court. By the residuary clause of her will, executed February 11th, 1891, Mrs. Betzey Wiesenfeld devised and bequeathed her estate as follows: “Item; I give, devise and bequeath all the rest and residue of my worldly estate (all of the rest and residue of my lands, tenements, goods, chattels, rights and credits) unto my said executors their survivors and survivor, In Trust and confidence however for the uses, intents, and purposes herein presently mentioned and declared of and concerning the same, that is to say; In Trust for the use and benefit of my nine children, Caroline, David, Rebecca, Amelia, Hiram, Rose, Bernard, Robert and Joseph each share and share alike, for and during the term of his and her natural life, the net annual income or interest thereof to be twice in every year by my said executors (at that time however acting as my trustees) passed over and paid to each cestui que trust, into however his or her, as the case may be, own ⁶⁵ hands and not into the hands of another, whether claiming by his or her authority or otherwise. And from and after the death of Caroline, Amelia, Rose, Bernard, Robert and Joseph respectively then unto and to the issue of the body of him or her so dying, living at the time of his or her death if more than one, share and share alike per stirpes and not per capita; but if he or she thus dying shall have died without issue of his or her body living at the time of his or her death, then unto my surviving issue share and share alike per stirpes and not per capita. And from and after the death of David and Rebecca, or either of them as to one half part of each of them in my trust estate (my estate thus held in trust) unto and to the issue of him or her so dying, if more than one, share and share alike per stirpes and not per capita; but if he or she (David or Rebecca) thus dying shall have died without issue of his or her body living at the time of his or her death, then unto and to the use of my surviving issue share and share alike per stirpes and not per capita; the survivor of those two children, my son Hiram, and their issue excepted; and as to the other half part of the one or the other of my children David and Rebecca, in my trust estate, leaving issue or none as the case may be, unto and to the use of my issue then living share and share like, per stirpes and not per capita; the survivor of those two children, and my son Hiram, and their issue excepted.

And from and after the death of my son Hiram, then as to his share or part of my trust estate, unto and to the use of my issue then living share and share alike, per stirpes and not per capita; my children David and Rebecca their issue and Hiram’s issue excepted. Should however Hiram’s daughter Florence survive her father and marry, I give and bequeath to her the sum of one thousand dollars as a wedding present.” By another provision of her will she directed that her trust estate should be kept by her trustees “as one estate,” and should not be sold or disposed of, nor should there be a partition of the same amongst her children ⁶⁶ or grandchildren until the death of her “last surviving child shall take place.” Later, May 30th, 1893, she executed a codioil to her will; the provisions involved in this appeal being the second and third items, which are as follows: “Second: By my said last will I have bestowed on my son Hiram a second part or portion of my trust estate for his life and after his death over in remainder to certain of my issue then living. I now, however, declare and say that should 'Hiram’s present wife survive him then and thereafter shall my trustees named in my said last will have and hold one-half of my trust estate then held by them for Hiram’s benefit at the time of his death for the use and benefit of his said wife for and during the term of her natural life, and from and after her death then as provided for in the will. “Third: By my last will I have bestowed a certain part of my trust estate on my daughter Rose, for life; with remainder over as therein stated. I, now, however, declare and say that after her death, my said trustees shall hold one-half of her said part of my said estate for the use and benefit of Rose’s son Moses Rosenfeld, for and during the term of his natural life, and from and after his death, then to and unto the issue of him my grandson Moses Rosenfeld, living at the time of his death share and share alike per stirpes and not per capita; but if he, my said grandson, shall die without issue living at the time of his death, then unto and to my issue then living, share and share alike per stirpes; and as to the other half thereof unto and to my issue living at the time of the death of my daughter Rose, share and share alike per stirpes and not per capita.” In the original will she had made her daughter Rose executrix of the will, along with her son Bernard, and son-in-law Joseph Miller, executors, but by the codicil she revoked the appointment of Rose, leaving the son and son-in-law as executors and trustees.

Eight of the nine children have died, leaving children, the order of their death being as follows: Caroline Rosen ⁶⁷ feld, 1900; Amelia Miller, 1903; David Wiesenfeld, 1916; Bernard Wiesenfeld, 1922; Rose W. Rosenfeld, 1927; Joseph Wiesenfeld, 1928; Hiram Wiesenfeld, 1932; and Rebecca Altmayer, 1934. Of the nine children Robert Wiesenfeld alone survives. A court auditor had stated an account distributing the income for -the year to February 11,1934, by which he had distributed to the children of Rebecca Altmayer and David Wiesenfeld, respectively, 40/648 of the entire income of the estate, made up of the 36/648 to which they were entitled under the original will after the deaths of their parents, plus one-ninth of one-half of the share of Rose. To Mrs. Minnie Wiesenfeld, widow and sole devisee and legatee of Hiram Wiesenfeld, he had made a distribution of 40/648 of the income, made up of the 36/648 which she is to receive for life under the second item of the codicil, plus 4/648, which was one-ninth of one-half of the interest of Rose, and distributed to her, on the theory that she would receive the income for life, and that interest (one-ninth of one-half of one-ninth) in the corpus absolutely on the death of Robert Wiesenfeld.

The auditor also distributed to Moses W. Rosenfeld the one-half of the income of his mother’s share which he took for life by name under the third item of the codicil on the death of his mother, Rose, and one-ninth of one-half of her interest which he took as “issue” of the testatrix living at the time of the death of her daughter and his mother, Rose, whose sole issue he was. These are the only items in the auditor’s account involved in this appeal, and it was only to the shares distributed to them out of Rose’s share under the third item of the codicil that exceptions were filed. The exceptions to the auditors’ account were filed by the heirs and next of kin of Caroline Rosenfeld, Amelia Miller, Bernard Wiesenfeld, and Joseph Wiesenfeld, who would profit by a reduction in the distributions to David, Hiram, and Rebecca if made in accordance with the original will, and whose grounds of exceptions were as follows: ⁶⁸ (1) That Minnie Wiesenfeld, widow'of Hiram, is only entitled to receive one-half of such share as he would have had under the original will, or 36/648 of the income of the whole estate, and that she is not entitled to receive any portion of the estate or interest devised iby the will and codicil to Rose Rosenfeld, and that those who claim by or from Rebecca Altmayer and David Wiesenfeld are not entitled to any part of Rose’s portion of the estate, and are limited to the halves of ninths which they took under the will, or 36/648 each. (2) That the auditor’s account was stated on the theory that Rose, under the original will, was entitled to share in the distribution after their deaths in the portions of the estate devised and bequeathed to David, Rebecca, and Hiram, whereas by a proper construction of the will and codicil she should be classified with them, and excluded from the shares of their three interests by the original will given to her, Caroline, Amelia, Bernard, Robert, and Joseph, designated in both 'briefs 'as the “favored” children.

(3) That Moses W. Rosenfeld, son of Rose, is only entitled to receive one-half of his mother’s share for life with remainder to his issue, and not, in addition thereto, one-ninth of the other half. In ruling on the exceptions to the auditor’s account, the chancellor decreed that it be ratified as stated as to everything except the distribution to Mrs. Minnie Wiesenfeld of one-ninth of one-half of Rose Rosenfeld’s one-ninth, or 4/648 of the whole, and “that the said Minnie Wiesenfeld is entitled to receive one-half or two of such four shares for life under the terms of the codicil to the will of the said Betzey Wiesenfeld; but that the other half of said four shares, or two six hundred and forty-eighths (2/648) of the whole net income, which was so distributed to the said Minnie Wiesenfeld by said account, is distributable to and among the same parties and in the same proportions as by the terms of said will the one-half of the share of net income originally bequeathed to the said Hiram Wiesenfeld for life and which was not by said ⁶⁹ codicil bequeathed to his said widow for life, is now distributable in and by said auditor’s account. “It is therefore Ordered that said account be and the same is hereby modified and altered by deducting from the share of net income thereby distributed to the said Minnie Wiesenfeld, the sum of $55.57, and by adding the amount so deducted to the shares of those distributees in said account to whom one-half of the share of net income originally distributed to Hiram Wiesenfeld is thereby distributed, and in the same proportions in which such one-half of said original share of Hiram Wiesenfeld is thereby distributed; and that said Auditor’s account, with the changes hereby made therein, is finally ratified and confirmed.” From this decree the exceptants appeal, and Minnie Wiesenfeld also appeals. From the decree appealed from, as we see it, Moses Rosenfeld takes on the death of his mother the income from half of her portion of the whole estate, and absolutely, as surviving issue of the testatrix, receiving the income thereon during the life of his uncle Robert, one-ninth of one-half of his mother’s portion of the estate, and with this we agree. The decree also determined that David’s children, he having predeceased Rose, and Rebecca Altmayer, each took, per stirpes, one-ninth of one-half of Rose’s share, and with this we agree.

As to Hiram’s ninth of half of Rose’s share, the decree holds that he took no more than a life estate; and that half of the