divide and pay over rule in New York

1954Wright v. Wright ( 225 N. Y. 329 ) is advanced as authority for the asserted proposition but as Surrogate Delehanty pointed out in Matter of Chaim ( 168 Misc. 923, 929 ), “ While the decision in that case refers to the divide and pay over rule its value as a precedent on the question of the time of vesting of a remainder interest is now in serious doubt ” (citing United States Trust Co. v. Taylor, 193 App. Div. 153, 159 , affd. 232 N. Y. 609 ).

1954The Wright case has been distinguished as far as the divide and pay over rule is concerned in United States Trust Co. v. Taylor ( 193 App. Div. 153, 159 , affd. 232 N. Y. 609 ), wherein the court said: “ The estate in the Wright case was contingent upon a condition that ‘ it (the library) shall be maintained at all times as a free circulating library. ’ Such a bequest was clearly conditional and did not come within the definition of a vested estate as stated in section 40 of the Beal Property Law ”.

1954In Matter of Staats ( 272 App. Div. 139 , 141), later affirmed by the Court of Appeals ( 297 N. Y. 648 ), the Appellate Division, Fourth Department said: “ The Surrogate’s conclusion is based, primarily, on the application of the so-called ‘ divide and pay over ’ rule, announced in New York decisions, of which Dickerson v. Sheehy ( 156 App. Div. 101 , affd. 209 N. Y. 592 ), Matter of Lamb ( 182 App. Div. 180 , affd. 224 N. Y. 577 ), and Matter of Curtis ( 252 App. Div. 256 , affd. 278 N. Y. 589 ), are typical.

1947(Dickerson v. Sheehy, 209 N. Y. 592, 596 .) It seems clear that testatrix intended to confine the remainder to her children and their descendants, and never contemplated providing for the husbands of those dying without issue. ’ “ In Matter of Baer ( 147 N. Y. 348, at p. 353 ) the court said: ‘ Where final division and distribution is to be made among a class the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made.

1954Wright v. Wright ( 225 N. Y. 329 ) is advanced as authority for the asserted proposition but as Surrogate Delehanty pointed out in Matter of Chaim ( 168 Misc. 923, 929 ), “ While the decision in that case refers to the divide and pay over rule its value as a precedent on the question of the time of vesting of a remainder interest is now in serious doubt ” (citing United States Trust Co. v. Taylor, 193 App. Div. 153, 159 , affd. 232 N. Y. 609 ).

1954The Wright case has been distinguished as far as the divide and pay over rule is concerned in United States Trust Co. v. Taylor ( 193 App. Div. 153, 159 , affd. 232 N. Y. 609 ), wherein the court said: “ The estate in the Wright case was contingent upon a condition that ‘ it (the library) shall be maintained at all times as a free circulating library. ’ Such a bequest was clearly conditional and did not come within the definition of a vested estate as stated in section 40 of the Beal Property Law ”.

1957"Where such is the case “ the interest shall be deemed vested at the death of the testator and the class of legatees is to be determined as of that date, for futurity is not annexed to the substance of the gift.” (Matter of Crane, 164 N. Y. 71, 76 , supra.) In support of their claim that the divide and pay over rule is applicable here, the appellants cite Wright v. Wright ( 225 N. Y. 329 , supra).

1954Wright v. Wright ( 225 N. Y. 329 ) is advanced as authority for the asserted proposition but as Surrogate Delehanty pointed out in Matter of Chaim ( 168 Misc. 923, 929 ), “ While the decision in that case refers to the divide and pay over rule its value as a precedent on the question of the time of vesting of a remainder interest is now in serious doubt ” (citing United States Trust Co. v. Taylor, 193 App. Div. 153, 159 , affd. 232 N. Y. 609 ).

1957In United States Trust Co. v. Taylor ( 193 App. Div. 153, 159 ; affd., 232 N. Y. 609 ) the Appellate Division stated: ‘ The contention of the respondent that the Embree case [ 9 App. Div. 602 ; affd., 154 N. Y. 778 ] has in effect been overruled by the Court of Appeals in Wright v. Wright ( 225 N. Y. 329 ) is not sound.

1954As the court stated in Fulton Trust Co. v. Phillips ( 218 N. Y. 573, 583 ):“ The so-called ‘ divide and pay over rule ’ is a canon of construction rather than a rule of property, and like other rules, which are applicable in the interpretation of wills, it is always applied in subordination to the intention of the testator which is expressed in the will.” In Matter of Embree ( 9 App. Div. 602, 605 ), affirmed on the opinion of the court below ( 154 N. Y. 778 ), the court .said: “ That even though there be no other gift in the will than that contained in a direction to pay or distribute in the

1957In United States Trust Co. v. Taylor ( 193 App. Div. 153, 159 ; affd., 232 N. Y. 609 ) the Appellate Division stated: ‘ The contention of the respondent that the Embree case [ 9 App. Div. 602 ; affd., 154 N. Y. 778 ] has in effect been overruled by the Court of Appeals in Wright v. Wright ( 225 N. Y. 329 ) is not sound.

1954As the court stated in Fulton Trust Co. v. Phillips ( 218 N. Y. 573, 583 ):“ The so-called ‘ divide and pay over rule ’ is a canon of construction rather than a rule of property, and like other rules, which are applicable in the interpretation of wills, it is always applied in subordination to the intention of the testator which is expressed in the will.” In Matter of Embree ( 9 App. Div. 602, 605 ), affirmed on the opinion of the court below ( 154 N. Y. 778 ), the court .said: “ That even though there be no other gift in the will than that contained in a direction to pay or distribute in the

1947(Dickerson v. Sheehy, 209 N. Y. 592, 596 .) It seems clear that testatrix intended to confine the remainder to her children and their descendants, and never contemplated providing for the husbands of those dying without issue. ’ “ In Matter of Baer ( 147 N. Y. 348, at p. 353 ) the court said: ‘ Where final division and distribution is to be made among a class the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made.

1934(Matter of Baer, 147 N. Y. 348 ; Matter of Kimberly, 150 id. 90; Matter of Crane, 164 id. 71; United States Trust Co. v. Nathan, 196 App. Div. 126 ; affd., 233 N. Y. 505 ; Matter of Me Kim, 115 Misc. 720 .) The provision for the substitution of the issue of a deceased child and the direction to divide the remainder into two general parts, and also to divide the respective funds into further fractions, brings the gift of the remainder within the divide and pay-over rule. (3) I hold further that by the direction that the issue of any deceased child should take the parent’s share, a per stirpes,

2014The divide and pay over rule 4 is one of construction and is used where the gift is not immediate but is to be divided and paid at a future time, where the gift is to a class of persons (11-193 Warren’s Heaton, Surrogate’s Court Practice § 193.02 [3] [2015]) and where the gift is of money (see Matter of Crane, 164 NY 71 [1900]).

1957"Where such is the case “ the interest shall be deemed vested at the death of the testator and the class of legatees is to be determined as of that date, for futurity is not annexed to the substance of the gift.” (Matter of Crane, 164 N. Y. 71, 76 , supra.) In support of their claim that the divide and pay over rule is applicable here, the appellants cite Wright v. Wright ( 225 N. Y. 329 , supra).

1957As Surrogate Delehawty said in Matter of Chaim ( 168 Misc. 923, 929 ): “ In that case the gift was upon condition that the corporate legatee should at all times be maintained as a free circulating library.

1954Wright v. Wright ( 225 N. Y. 329 ) is advanced as authority for the asserted proposition but as Surrogate Delehanty pointed out in Matter of Chaim ( 168 Misc. 923, 929 ), “ While the decision in that case refers to the divide and pay over rule its value as a precedent on the question of the time of vesting of a remainder interest is now in serious doubt ” (citing United States Trust Co. v. Taylor, 193 App. Div. 153, 159 , affd. 232 N. Y. 609 ).

1954In Matter of Staats ( 272 App. Div. 139 , 141), later affirmed by the Court of Appeals ( 297 N. Y. 648 ), the Appellate Division, Fourth Department said: “ The Surrogate’s conclusion is based, primarily, on the application of the so-called ‘ divide and pay over ’ rule, announced in New York decisions, of which Dickerson v. Sheehy ( 156 App. Div. 101 , affd. 209 N. Y. 592 ), Matter of Lamb ( 182 App. Div. 180 , affd. 224 N. Y. 577 ), and Matter of Curtis ( 252 App. Div. 256 , affd. 278 N. Y. 589 ), are typical.

1927(Matter of Lamb, 182 App. Div. 180 .) The court has examined at great length the briefs of the counsel and the authorities cited therein applicable to the contentions of the parties, and they are to be commended on their careful research of the law upon the subjects involved in this case, and the court fully realizes that the decisions cannot be harmonized, and that the bequests and devise in a will as to whether it vests on the death of the testator, or as to a class or to individuals as tenants in common, as to whether the divide and pay-over rule applies, must depend in each instance upon t

2014Generally, the result of the rule is that the gift is paid to those answering the description at the time of distribution (see Matter of Leonard, 218 NY 513 [1916]; see also Matter of Crane).

1956(See, also, Clark v. Cammann, 160 N. Y. 315 .) The language contained in the will and the surrounding circumstances should be examined to ascertain the intent of the testator.

1956A similar conclusion was made in May v. May ( 209 App. Div. 19 ) wherein the court utilized the divide and pay over rule, and held that the testatrix did not contemplate providing for the husbands of those of her children dying without issue, and denied the application of the estate of the one so dying.

1954As the court stated in Fulton Trust Co. v. Phillips ( 218 N. Y. 573, 583 ):“ The so-called ‘ divide and pay over rule ’ is a canon of construction rather than a rule of property, and like other rules, which are applicable in the interpretation of wills, it is always applied in subordination to the intention of the testator which is expressed in the will.” In Matter of Embree ( 9 App. Div. 602, 605 ), affirmed on the opinion of the court below ( 154 N. Y. 778 ), the court .said: “ That even though there be no other gift in the will than that contained in a direction to pay or distribute in the

1954In Matter of Staats ( 272 App. Div. 139 , 141), later affirmed by the Court of Appeals ( 297 N. Y. 648 ), the Appellate Division, Fourth Department said: “ The Surrogate’s conclusion is based, primarily, on the application of the so-called ‘ divide and pay over ’ rule, announced in New York decisions, of which Dickerson v. Sheehy ( 156 App. Div. 101 , affd. 209 N. Y. 592 ), Matter of Lamb ( 182 App. Div. 180 , affd. 224 N. Y. 577 ), and Matter of Curtis ( 252 App. Div. 256 , affd. 278 N. Y. 589 ), are typical.

1954In Matter of Staats ( 272 App. Div. 139 , 141), later affirmed by the Court of Appeals ( 297 N. Y. 648 ), the Appellate Division, Fourth Department said: “ The Surrogate’s conclusion is based, primarily, on the application of the so-called ‘ divide and pay over ’ rule, announced in New York decisions, of which Dickerson v. Sheehy ( 156 App. Div. 101 , affd. 209 N. Y. 592 ), Matter of Lamb ( 182 App. Div. 180 , affd. 224 N. Y. 577 ), and Matter of Curtis ( 252 App. Div. 256 , affd. 278 N. Y. 589 ), are typical.

1954In Matter of Staats ( 272 App. Div. 139 , 141), later affirmed by the Court of Appeals ( 297 N. Y. 648 ), the Appellate Division, Fourth Department said: “ The Surrogate’s conclusion is based, primarily, on the application of the so-called ‘ divide and pay over ’ rule, announced in New York decisions, of which Dickerson v. Sheehy ( 156 App. Div. 101 , affd. 209 N. Y. 592 ), Matter of Lamb ( 182 App. Div. 180 , affd. 224 N. Y. 577 ), and Matter of Curtis ( 252 App. Div. 256 , affd. 278 N. Y. 589 ), are typical.

1954The existence of a power of appointment is not such a contingency (Waterman v. New York Life Ins. & Trust Co., 237 N. Y. 293 ).

1954In Matter of Staats ( 272 App. Div. 139 , 141), later affirmed by the Court of Appeals ( 297 N. Y. 648 ), the Appellate Division, Fourth Department said: “ The Surrogate’s conclusion is based, primarily, on the application of the so-called ‘ divide and pay over ’ rule, announced in New York decisions, of which Dickerson v. Sheehy ( 156 App. Div. 101 , affd. 209 N. Y. 592 ), Matter of Lamb ( 182 App. Div. 180 , affd. 224 N. Y. 577 ), and Matter of Curtis ( 252 App. Div. 256 , affd. 278 N. Y. 589 ), are typical.

1954In Matter of Staats ( 272 App. Div. 139 , 141), later affirmed by the Court of Appeals ( 297 N. Y. 648 ), the Appellate Division, Fourth Department said: “ The Surrogate’s conclusion is based, primarily, on the application of the so-called ‘ divide and pay over ’ rule, announced in New York decisions, of which Dickerson v. Sheehy ( 156 App. Div. 101 , affd. 209 N. Y. 592 ), Matter of Lamb ( 182 App. Div. 180 , affd. 224 N. Y. 577 ), and Matter of Curtis ( 252 App. Div. 256 , affd. 278 N. Y. 589 ), are typical.

1946Judge Woodruee in Moore v. Littel ( 41 N. Y. 66, 77 , supra [1869]) said: “ * * * I deny the right to interpolate qualifications drawn from the refined reasoning of cases or textbooks, prior to the statute, to limit the operation of its plain terms.” From the decision in the Brown case (supra) and a careful reading of all available authorities, it is apparent that the statute has survived not only the refined reasoning of cases in textbooks prior to its enactment, but all intermediate canons of construction, judicial reasoning, ill-considered language employed to define the divide and pay-over

1946But that rule is subordinate to the common law, the statute, and the enduring principles so clearly expressed by Judge Haight in Matter of Brown ( 154 N. Y. 313 , supra).

1945Again, in Matter of Watson ( 262 N. Y. 284, 300 ) the court said: “ The law favors the vesting of estates, and, unless a contrary intention is unequivocally expressed, it will not be imputed.

1937A remainder gift to named persons imports an immediate vesting (Matter of Gardner, 140 N. Y. 122 ; Matter of Soy, 143 Misc. 217 , and cases cited.) Under the cited authorities the divide and pay over rule canno'u be applied here to defeat the vesting of three-fourths of the fund in the charities as of the date of death of deceased.

1937A remainder gift to named persons imports an immediate vesting (Matter of Gardner, 140 N. Y. 122 ; Matter of Soy, 143 Misc. 217 , and cases cited.) Under the cited authorities the divide and pay over rule canno'u be applied here to defeat the vesting of three-fourths of the fund in the charities as of the date of death of deceased.

1936(Brundage v. Brundage, 60 N. Y. 544, 548 ; Matter of Larney, 148 Misc. 871, 878 ; Matter of Schrier, 147 id. 539, 540; Matter of Shevlin, 143 id. 213, 217.) The application of these two rules, which are, if anything, more generally applied than the divide and pay over rule, would result in a determination that the recipients of his bounty, whom testator had in mind, were those of his children who were living at the time of his death, and that the substitutionary gift to the children of those who had died referred merely to those, if any, who might predecease him.

1936(Brundage v. Brundage, 60 N. Y. 544, 548 ; Matter of Larney, 148 Misc. 871, 878 ; Matter of Schrier, 147 id. 539, 540; Matter of Shevlin, 143 id. 213, 217.) The application of these two rules, which are, if anything, more generally applied than the divide and pay over rule, would result in a determination that the recipients of his bounty, whom testator had in mind, were those of his children who were living at the time of his death, and that the substitutionary gift to the children of those who had died referred merely to those, if any, who might predecease him.

1934(Matter of Baer, 147 N. Y. 348 ; Matter of Kimberly, 150 id. 90; Matter of Crane, 164 id. 71; United States Trust Co. v. Nathan, 196 App. Div. 126 ; affd., 233 N. Y. 505 ; Matter of Me Kim, 115 Misc. 720 .) The provision for the substitution of the issue of a deceased child and the direction to divide the remainder into two general parts, and also to divide the respective funds into further fractions, brings the gift of the remainder within the divide and pay-over rule. (3) I hold further that by the direction that the issue of any deceased child should take the parent’s share, a per stirpes,

1934(Matter of Lawrence, 238 N. Y. 116 ; Matter of Farmers’ Loan & Trust Co., 213 id. 168 ; Matter of Durant, 231 id. 41.) The testator clearly did not intend that a child or grandchild of a primary life beneficiary should participate with such beneficiary in the division of the remainder.

1934(Matter of Lawrence, 238 N. Y. 116 ; Matter of Farmers’ Loan & Trust Co., 213 id. 168 ; Matter of Durant, 231 id. 41.) The testator clearly did not intend that a child or grandchild of a primary life beneficiary should participate with such beneficiary in the division of the remainder.