147 N.Y.S. 522 | N.Y. Sup. Ct. | 1913
The right of the plaintiff as executor of the will of his mother, Emma Bacon, to maintain this action to obtain a judicial construction of her will,
The will of Emma Bacon was made August 16,1881. The testatrix was then in her seventy-eighth year, and was suffering from a malady which, fifteen months later, November 7, 1882, caused her death. Her husband, Joel W. Bacon, had died November 14, 1876.
When Emma Bacon made her will her four sons were married, and all of them had living children. Her daughter Emma was of the age of fifty-three years and was the wife of John E. Ditmars, to whom she had been married twenty-one years, but had had no children. Her other daughter, Weltha E. Sayre, was thirty-nine years old, had been married a year and a half, but had had no children. The sons-in-law had property of their own. Mr. and Mrs. Ditmars were living together when her mother made her will, but afterward separated. It would appear from the plaintiff’s testimony that Mr. Ditmars was somewhat in disfavor at the time the will was made, which fact, if true, may throw a sidelight upon the expression in the will which has given rise to the present dispute.
The will is in the handwriting of a clerk in the law office of Sterling- Gr. Hadley, a former surrogate of Seneca county, who was one of the attesting witnesses. After directing her executors to pay her debts, the testatrix disposes of her property in words and manner as follows:
“Second. I.do will, give, bequeath and devise unto the children of Elijah M. Bacon, eldest son of my late husband, and which children reside in the county of St. Clair, Michigan, and whose names are Mary S.,
“ Third. I do will, give, bequeath and devise all the rest, residue and remainder of my estate of every kind and description wheresoever the same may be, unto my children, viz.: Emma Ditmars of Geneva, N. Y., Benjamin Bacon, William F. Bacon, Francis Bacon of Waterloo, IST. Y., Weltha E. Sayre of Phelps, N. Y. and Thaddeus W. Bacon of China, St. Clair County, Michigan, absolutely; Provided always, that in ease any of my said children shall die leaving issue surviving then such ones share shall go to such issue, share and share alike. But in case any of my said children shall die without leaving issue surviving, then such deceased ones share shall go to his or her surviving brothers and sisters, share and share alike, and in no event shall the shares of my said daughters, should they die without issue surviving, go to their husbands respectively, but shall go as above indicated to their surviving brothers and sisters as aforesaid indicated.
“ Lastly. I do hereby nominate and appoint my four sons, Benjamin, Thaddeus W., William F., and Francis, Executors of this my last Will and Testament, and I do hereby expressly revoke and annul all former Wills by me made.”
The entire residuary estate was divided by the executors in seven equal portions of $16,650.93 each, con
The dispute about the meaning of the will appears to be of recent origin. It is now claimed by the plaintiff and by the defendant Zartman as trustee, that the legacies in Emma Bacon’s will to her six children was not intended to be absolute gifts. The plaintiff claims they were not gifts at all, and that none of the six children had any right to use for himself or herself any part of said portion so paid over by the ex - ecutors, either principal or income, but that it was the intention of their mother that the children should be only the custodians of those portions or shares, each child holding a portion intact, accumulating the income thereon until said child should die, and then, for the first time, would the absolute ownership of that portion, with its accumulations, be determined. If that child should die leaving issue, the issue would take the portion, with all its accumulated earnings; and if there were no issue surviving that child, then the portion held by him or her, with all its accumulations, would be divided among the surviving brothers and sisters; and that the duty is laid upon the executors of Emma Bacon to receive the fund from the estate of the child
With all due respect, an interpretation of the will which would forbid the enjoyment by any one of her children of any part of the income of the respective shares which she says she gives to her children ‘1 absolutely ” seems hardly arguable. Such a strange and tantalizing testamentary intention should not be attributed to the testatrix. Undoubtedly this mother intended to confer a real gift upon her children, who were the natural objects of her bounty. There is no direction to accumulate the income, and none should be inferred. Such a direction,' if made, would have violated the statute against accumulating incomes, because not ordered for the benefit of infants and limited in time to their minority. Kilpatrick v. Johnson, 15 N. Y. 322.
The defendant Zartman, as trustee, takes a more moderate position, conceding that each child who received this portion of $16,650.93 from the executors had the right to use the income thereon during his or her life, but. contends that his or her right in the fund was only a life estate, the remainder going to the issue of. that child, if any, or, in default thereof, to the surviving brothers or sisters.
The question is here because Weltha B. Sayre died February 15, 1911, leaving no issue. Her sister and three of her brothers had previously died. The plaintiff, her remaining brother, in his own right as the only child of Emma Bacon who survived Weltha, and as sole surviving executor of Emma Bacon’s will, asks that the executors of the will of Weltha pay over to him the portion paid to Weltha in 1883, and account for all the earnings thereon during the intervening years. The defendant Zartman, as trustee in bankruptcy of the plaintiff, asks that the executors of
The executors of the will of Weltha claim that the bequest to each child who survived Emma Bacon was absolute and subject to no further contingency, and that the proviso with regard to a gift over in case of the death of a child of the testatrix, either with or without issue, applied only to the death of such child in the lifetime of the testatrix, Emma Bacon. This seems to me to be the right construction.
The first sentence of the third paragraph of the will says: “ I do will, give, bequeath and devise all the rest, residue and remainder of my estate of every kind and description, wheresoever the same may be, unto my children [naming them], absolutely.” Nothing could be plainer than that. The word “ absolutely ” clinches the matter. What follows refers to a contingency only and not to a certainty. Death, either with or without issue surviving, was sure to come to each child of Emma Bacon; but when she made her will it was uncertain whether all of her children would survive her. And if we hold that the contingency of the death of a child in hen lifetime is provided for, the proviso is entirely consistent with the use of the word “ absolutely,” with which the first sentence of the third clause closes.
The intention of the testator is to be gathered from the entire will, but the cutting down of an absolute estate once given will only be done by equally clear and decisive terms. Roseboom v. Roseboom, 81 N. Y. 356. And when a gift or devise is made in absolute terms, followed by a substituted gift or devise to operate in the case of the death of the first named legatee or devisee, such death will be held to mean death in the lifetime of the testator, unless the whole context shows that the contrary was intended, and
Two considerations are urged by the learned counsel for the plaintiff and by the trustee in bankruptcy, to support the contention in which they unite, that the provision respecting the death of either of her children was not limited to a death in her lifetime. In the first place, emphasis is placed upon the fact that the testatrix was in her seventy-eighth year when the will was made, and was suffering from an incurable malady. In this respect attention is called to Matter of Cramer, 170 N. Y. 271, in which case the testatrix, then eighty-five years old, made a will in which she bequeathed to her two great-grandchildren, Gracie and Myrtie Cramer, then eleven and nine years old respectively, all of her personal property equally, share and share alike, saying: "but in case of the death of either of said great-grandchildren, Gracie or'Myrtie, without heir or heirs, I direct that such share of personal property shall go to the survivor of them. ’ ’ The Court of Appeals say: “ The testatrix undoubtedly looked forward to a time when these young girls might attain womanhood, marry and have children, in which event the property of the one first dying, which came from testatrix, should go to her children and not to her surviving sister.” And Gracie having died without descendants subsequently to the death of her great-grandmother, it was held that her sister, by survivor-ship, took the share first given to Gracie. The extreme age of the testatrix when the will was made, and the extreme youth of the two legatees, considered in connection with provisions which looked a long way into the future, presented a case under which the usual rule of interpretation referring a death of the first legatee to a death in the lifetime of the testatrix was held not to apply: but in the present case no such con
In Benson v. Corbin, 145 N. Y. 351, the age of the testator with reference to the children named in his will was quite similar to the situation in which Mrs. Bacon was placed when she made her will. In the Benson case the argument was made that because the testator was seventy-five years of age and his children only in middle life he did not contemplate their possible death before his own; but the Court of Appeals in rejecting that suggestion say: “It is not at all rare or unusual for an old man to think that others, though younger, may die before him.” Mrs. Ditmars was fifty-three years old when her mother’s will was made, and had had no children: but the fact that Mrs. Ditmars was quite sure to die childless did not make her death in the lifetime of her mother less probable. I cannot see that the age of the testatrix and the situation of her family present any reason for placing a construction upon this will contrary to the usual rule that such a death refers to a death in the lifetime of the testatrix.
The other argument pressed upon us by counsel for the plaintiff and the. trustee in bankruptcy is based upon the inhibitory words, “ and in no event shall the shares of my said daughters, should they die without issue surviving, go to their husbands respectively, but shall go as above indicated to their surviving brothers and sisters as aforesaid indicated.” And it is urged that if a daughter should have died in the lifetime of the mother, without leaving issue, the husband could not have come into any of that daughter’s share; and it is argued that the testatrix must have contemplated a condition when the husband of a de
The disposing part of a will is the important part, and should not be sacrificed to incidental phraseology. Wager v. Wager, 96 N. Y. 164. The main idea here is not to keep something away from the daughter’s husband, but to give something to the daughter. This inhibitory clause does not, in itself, dispose of any property: on the contrary, it declares that it shall go “ as above indicated;” and therefore it should not be deemed to cut down the absolute legacy given to each of the children who should survive their mother. In the Wager case, the Court of Appeals disapproved of an attempt “ to destroy an estate by an inconclusive
I come to that conclusion all the more easily because it harmonizes with the construction apparently put upon the will by the family, especially this plaintiff, from the time the estate of Emma Bacon was distributed in 1883, down to 1911 when Mrs. Sayre made her will. Emma Ditmars died in 1887, having had no children. Plaintiff was one of the executors of her will. Her estate was inventoried, and as a part thereof and mingled indiscriminately therewith was whatever was left of the portion she had received from her mother’s estate. It is true her residuary legatees were her four brothers and her sister Weltha. Her will provided, however, that “ should any of my said brothers or sister die before my decease, their heirs are to take the share which said brother or sister would take if living.” If that clause were intended by Emma Bit-mars to operate upon that portion of her estate which she received from her mother, it does not follow the line of devolution which plaintiff now claims was marked out for such share in the mother’s will: for, in that event, that portion could not be given to the children of the deceased brother, but would have to go to her surviving brothers and sister. Indeed it could not be controlled in any way by Mrs. Ditmar’s will. Of course the question did not directly arise on
The evidence does not disclose how the three brothers of the plaintiff handled the portions received by them from their mother’s estate. Plaintiff’s brother William Frederick died February 24, 1894, leaving children. Thaddeus died October 27, 1909, leaving children. Benjamin died December 26, 1910, leaving children. William and Benjamin acted with plaintiff as executors in dividing the estate. Thaddeus did not qualify.
It does appear affirmatively that the plaintiff used the portion of his mother’s estate paid to him as if it were his own. He did not separate it nor hoard the income, and when he went into bankruptcy in 1904 whatever was left was turned over to his trustee in bankruptcy, who received it as if it belonged to the bankrupt.
All this had taken place before Weltha made her will January 19, 1911. No effort was made by her in her lifetime to keep separate from her general estate the property she had received from the plaintiff and his co-executors of her mother’s will, and in her own will no separation is contemplated. The children of her deceased brothers are generously provided for, and a trust is created in favor of the plaintiff for his life, with remainder to his children.
The practical interpretation which seems to have been placed upon the mother’s will by this family, and particularly by the plaintiff, for nearly thirty years, should not now be disturbed by the court unless there are most imperative reasons for such action. Reid v. Sprague, 72 N. Y. 457; Matter of Marx, 117 App. Div. 890.
As there is no longer an estate of Emma Bacon out of which costs could be paid, no costs are allowed.
Judgment accordingly.