Bayeaux v. Bayeaux

8 Paige Ch. 333 | New York Court of Chancery | 1840

The Chancellor.

It is very evident that this will was either drawn by the decedent himself, or by some other person equally ignorant not only of legal language but of legal principles. It is, therefore, very difficult to form any opinion from the will what disposition the testator intended to make of his property. Taking the first section of the will by itself it would appear that he must have intended to give the whole estate to his wife, at least during her life ; trusting to her to apply the income thereof for the support of her children or otherwise, as she might deem proper ; but making no disposition of the property after her death. But the third section, which provides for the appointment of a trustee to protect the property for the separate use of the wife, in case of her re-marriage during the minority of the children, and which makes no provision for the case of a re-marriage after they are of age, seems to be inconsistent with the idea that she was to enjoy the whole income of the property for life. And the fifth section clearly shows that the testator did not suppose that by any of the previous clauses of the will he had given to the wife his property absolutely in fee. Upon the whole, I think, the testator had no distinct conception of the nature or extent of the interests which he was giving to his wife and children in his property, by this anomalous will. And that the different characters of executrix, trustee, and testamentary guardian have been mingled together by him, in this attempt to put his children and their property under the absolute control of their mother during their minority. He also appears to have had some confused idea of a power in trust to take the property from the children and give it to others, in case of disobedience, or upon their marrying without the consent of their mother. But, even that power is not given in such a way that it can be effectually exercised • as the mother is not authorized to appoint the property to others in such a case. And a power to keep the property herself, by withholding her assent to the marriage of her child, would probably be invalid, and inconsistent with the principles of pub-lie policy ; as it might operate as an inducement to her to withhold her consent to a proper marriage.

I therefore conclude that the testator has, by implication at least, appointed the complainant the executrix of his will, during her widowhood and the testamentary guardian of the property of the children during their respective minorities. But that he has madeno legal orvalid disposition, by his will, of any part of his real or personal estate. The real estate, therefore, belongs to the defendants, subject to their mother’s right of dower therein ; and they are also entitled to two thirds of the personal estate after payment of debts and the expenses of the administration. The complainant must account with them accordingly as they respectively arrive of age. And, in the meantime, she is authorized to rent the real estate and invest their respective shares of the personal estate, and to receive the income thereof for their use, as testamentary guardian.

A decree must be entered, declaring the construction of the will accordingly ; and directing the costs of both parties to be paid out of the personal estate of the testator.