185 N.Y. 23 | NY | 1906
Lead Opinion
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This will, written by the testator himself, evidences, in the confusion of its language, an effort to make a definite testamentary disposition of his estate, without the aid, or the advice, of legal counsel; which might be ascribed to an exceeding confidence in his own ability, or, as may be gathered in some expressions, to an unhappy distrust of lawyers. The result, in my opinion, has been disastrous to the instrument. We cannot hold that the intended testamentary disposition is sanctioned by our statutes. The court below has made a commendable, if not an heroic, effort to uphold it in part; but, when analyzed, the result is to reveal the purpose of the testator to tie up his estate in a trust, which might suspend the absolute ownership beyond the statutory period. He intended to place it in a trust for the three lives of his sons; subject to an annuity for his widow. It is the very plain duty of the court to find out what a testator has meant to do with his property after his death and, then, if it be possible to give his plan effect by a construction which will validate it, to do so. But the court cannot make a new will for him; nor should it be expected to resolve into lawfulness *29
of disposition some tangle of desires to provide for future contingencies. The inquiry, in each case, must be what provisions has the testator intended to make for the disposition of his estate and not whether he intended to dispose of his estate according to the statutory rules governing testamentary dispositions. When the provisions are ascertained and understood, then is their legality to be determined. (Colton v. Fox,
Each will must be read and considered with reference to its peculiar provisions and to the circumstances attendant upon its making, and precedents are, rarely, of avail. In this will, we can see that a trust was intended. So much is clear. No particular formula of words, or terms, is ever necessary to constitute a trust and it suffices for the plan, if, upon a consideration of the instrument, the purpose of a trust is manifest. Nor will it militate against the constitution of several trusts that the capital of the estate is to be kept together and administered as one fund for convenience; provided that it shall appear that the shares and interests of the beneficiaries are made, or, clearly, intended to be made, distinctly several. (Tobias v. Ketchum,
It is plain that there was one indivisible trust constituted by the plan, to endure for the three lives of the sons, contrary to the provision of the statute, which limits the suspension of the absolute ownership of property to two lives in being at the testator's death; a provision which is violated when there is the possibility of such an occurrence. (Schettler v. Smith,
I, therefore, think that we are forced to the conclusion that but one trust was constructed by the testator, which should continue to hold his estate, and it must follow, as it was dependent upon three lives, that it violated the statute against perpetuities. The trust scheme being invalid, the whole will must fail and the estate of the deceased must be divided among the widow and three sons in the statutory proportions prescribed in the case of an intestacy; namely one-third thereof to the widow and to each son two-ninths thereof.
The widow's annuity, necessarily, falls with the failure of the trust scheme, of which it was part. Her claim of a right to enforce the ante-nuptial contract has no place in this action. It affects in no way the question presented. It purported to set aside the sum of 4,000 pounds as a "marriage settlement" and when referred to in the will, it is with reference to its bearing upon the amount of income to be allowed her, in the event that she prefers to have it stand. But the court has found that, at the time of testator's death, there was no specific property real, or personal, to any amount, which had been set aside as a marriage settlement. What, if any, may be the widow's rights under the contract, is a question with which the court, at present, is not concerned.
The judgment appealed from should be reversed and a judgment should be entered in conformity with this opinion; with costs in all the courts to all parties, who have appeared by counsel, to be paid from the fund in the plaintiff's custody.
Dissenting Opinion
I am of opinion that the testator succeeded in creating three valid separate trusts for the payment of the income of the estate to his three sons for life, subject to an annuity for the benefit of the widow.
The provisions of the will for unlawful accumulation of *35 income can be lopped off without affecting the validity of the separate trusts and the accumulation during the minority of each son.
I also am of opinion that the testator failed to make any lawful disposition of the principal of his estate on the termination of each of the said trusts, and, therefore, died intestate as to it. It follows that the trust company is the proper custodian of the principal during the existence of the respective trusts, and on the termination of each trust one-third of the same will pass under the Statutes of Distribution.
The judgment should be affirmed.
CULLEN, Ch. J., WERNER, HISCOCK and CHASE, JJ., concur with GRAY, J.; EDWARD T. BARTLETT, J., reads dissenting memorandum; O'BRIEN, J., absent.
Judgment accordingly.