164 Misc. 508 | N.Y. Sup. Ct. | 1934
I shall now rule on the objections to the testimony of Charles S. Cutting, decision upon which was reserved on March twenty-ninth. During the intervening period I have carefully examined and received material assistance from the voluminous briefs of the interested parties.
These rulings will be made upon the hypothesis that the power of appointment granted to Mrs. McCormick by the trust deed was not destroyed by the documents executed in 1918, without prejudice to the future consideration of that question. These documents are already in evidence, but have not been referred to in the briefs. The contention concerning Judge Cutting’s testimony may be academic, however, if the power of appointment was in fact terminated in 1918.
The power of appointment is found in that part of the language of the trust deed which requires the trustee upon the death of Mrs. McCormick, the grantor’s daughter, “ to convey the trust fund to
The fundamental issue on this branch of the case is whether the will effected any appointment of the trust fund under the power created by the trust deed. In so far as this is an issue of law, it is governed by the law of New York, the domicile of the grantor of the power and location of the property, and not by the law of Illinois, the domicile of the testatrix. (Matter of New York Life Insurance & Trust Co., 209 N. Y. 585; Matter of Campbell, 138 Misc. 800; Matter of Marsland, 142 id. 230; Sewall v. Wilmer, 132 Mass. 131; Farnum v. Pennsylvania Co., 87 N. J. Eq. 108; 99 A. 145; affd., 87 N. J. Eq. 652; 101 A. 1053; Bingham’s Appeal, 64 Penn. St. 345; see, also, Blount v. Walker, 134 U. S. 607.) The controlling law of New York is found in section 18 of the Personal Property Law, which'provides in substance that a will purporting to pass all the testator’s personal property operates as an execution of a power of appointment unless a contrary intent “ appears therein expressly or by necessary implication.” In so far as the issue is one of fact it is governed by the New York law of evidence (22 C. J. 198). It is on this issue of fact that the testimony of Judge Cutting has been offered by the plaintiff, the offer being concurred in by all of the defendants except Mrs. Hubbard, the Chicago Title and Trust Company, as executor, and the Krenn assignees. Judge Cuiting is a Chicago lawyer who drew the will on Mrs. McCormick’s instructions and witnessed its execution. The defendant Mrs. Hubbard has objected to the receipt of his testimony on several grounds, including inadmissibility of extrinsic facts to interpret or construe the will, and incompetency of the
The questions asked of the witness and the answers given by him may be grouped, with a few minor exceptions, in three divisions. The first of these relates to transactions and conversations with Mrs. McCormick regarding her own property and sundry miscellaneous matters; the second relates to the law of Illinois, the method of executing powers of appointment thereunder, and advice given to Mrs. McCormick thereon; and the third division embraces conversations between the witness and Mrs. McCormick containing in substance or effect direct statements of her intentions with respect to the execution of the power of appointment. It will be convenient to consider first the admissibility of each of these divisions with respect, to their subject-matter, and to take up afterwards the competency of the witness.
Objection is made to the first division, as well as to the other divisions, that no extrinsic evidence whatever is admissible for the interpretation of this will, which is said to be perfectly clear on its face, especially in view of section 18 of the Personal Property Law under which any intent not to exercise the power of appointment must appear in the will itself and not outside of it.
The apparent conflict which is found in the opinions of courts and text writers on the subject of the admissibility of extrinsic evidence for the interpretation of wills and other legal documents may be ascribed largely to three causes; first, a lack of uniformity in the meaning of the phrase “ extrinsic evidence ” in respect to its subject-matter; second, a difference of opinion, and perhaps a change and growth in the law, as to the conditions under which consideration may be given to any facts outside of the document; and third, I believe, a failure to distinguish between the logical relevancy of extrinsic facts and their efficacy or weight. The Court of Appeals has said through Chase, J., in Mullen v. Washburn (224 N. Y. 413, at p. 420), “ It is a well-established rule of law that parol evidence is admissible to apply a writing to its subject.” Such a legal scholar as Surrogate Fowler, however, has declared that “ what is most generally meant in modern law by extrinsic evidence in aid of interpretation of a will is not the circumstances surrounding testator, but direct evidence of the testator’s intention, i. e., his declarations made outside of the written
A decidedly different opinion was proclaimed by Miller, J., then of the Appellate Division, First Department, dissenting from the majority of the court in Matter of Turner (142 App. Div. 645), where he remarked that Chancellor Kent’s strictures on parol evidence in Mann v. Mann (1 Johns. Ch. 231) (relied on by Surrogate Fowler in Matter of Fowles), “ must be understood as referring only to evidence of declarations of the testator and the like, to explain his intention,” and added: “And if any rule with respect to the construction of wills is well settled, it is, that in construing wills the court is always entitled to know the surrounding circumstances, the situation of the testator and of his family, and the nature and extent of his property ” (p. 651). The Court of Appeals reversed the Appellate Division and approved this portion of Mr. Justice Miller’s opinion (206 N. Y. 93, 99). Substantially the same doctrine was recognized and acted upon in Matter of Thompson (217 N. Y. 111, 114); Ely v. Megie, (219 id. 112, 127), and Matter of Neil (238 id. 138, 140), without specific reference to ambiguity, latent or patent.
The Court of Appeals has lately announced an even more liberal view in the following comprehensive language: “It is the modern rule that ‘ with the exception of direct statements of intention, no
A very recent opinion of the Appellate Division, Fourth Department, tersely and clearly expresses, as follows, the nature of the extrinsic facts most frequently admitted, as well as the purpose of their admission: “ While the will must speak for itself, and the intention of the author must be gathered from the instrument, the court, in order to understand better and interpret the language of the testator, should, so far as possible, place itself in his position at the time he executed the will, and take into consideration all the surrounding facts and circumstances, including his family relations, the state of his property, the purpose of the instrument, and the motives which might reasonably be supposed to have influenced him in the disposition of his property.” (Fell v. McCready, 236 App. Div. 390, 395.)
There are, of course, limitations to the use of such extrinsic evidence, e. g., it cannot be used to insert provisions for which there is no basis in the will. (Brown v. Quintard, 177 N. Y. 75; Fries v. Osborn, 190 id. 35.) Nor can it be used to contradict the unambiguous meaning of the will. (Dwight v. Fancher, 245 N. Y. 71; Matter of Watson, 262 id. 284.) But while courts have sometimes said that extrinsic evidence of this kind is admissible only when the language is not clear in itself, it seems that these expressions probably mean merely that where the language is capable of only one meaning, extrinsic facts will be incapable of overcoming it and, therefore, immaterial and unnecessary to its understanding. (Matter of Smith, supra.) At any rate there can rarely be substantial error in the admission of evidence which is impotent to affect the decision. On the other hand, the exclusion of helpful illumination may require a reversal. (Matter of Martin, 255 N. Y. 248; Baumann v. Steingester, 213 id. 328.)
Reconcilement of the decisions is made easier by keeping in mind that the fundamental objective of the inquiry which occasions the offer of evidence is to ascertain the intention of the testator as expressed in the instrument. (Matter of Silsby, 229 N. Y. 396; Matter of Bump, 234 id. 60; Carley v. Harper, 219 id. 295, 301.) The functions and limitations of extrinsic evidence in this search are expounded with remarkable clarity in 5 Wigmore on Evidence (2d ed. §§ 2458-2478). The intention of the testator in so far as it is not expressed in the instrument is of no importance whatever, because totally incapable of causing testamentary results. To give effect through such evidence to intentions of the testator not found
It is contended on behalf of Mrs. Hubbard, however, that no extrinsic evidence whatever may be admitted in connection with the interpretation of a will for the purpose of determining whether it exercises or fails to exercise a power of appointment enjoyed by the testator. This would be an exception to the general rule, and .the argument put forth is that under section 18 of the Personal Property Law the intent required to prevent a general bequest of all the testator’s personal property from causing his will to operate as an execution of a power of appointment must be one which “ appears therein either expressly or by necessary implication.” The reasoning appears to be that if the intent is not apparent without the aid of extrinsic evidence, then it does not appear in the will. This argument is not convincing. It loses sight of the fact that not only the question of the exercise of the power of appointment, but the testamentary effect of the document in every other respect, depends on the intent of the testator as found in the words of the will and only as so found, and that the only permissible purpose of admitting extrinsic evidence in any case is to ascertain the real meaning of the language of the document. The circumstances surrounding the testator at the execution of the will may throw as much light on language touching the power of appointment as on any other language in the will, and, if it throws or may throw such light, the evidence should be received.
This was clearly the law of New York prior to the enactment of the statute (White v. Hicks, 33 N. Y. 383; Hutton v. Benkard, 92 id. 295); and the last mentioned case, as well as Lockwood v. Mildeberger (159 N. Y. 181), instead of suggesting that the statute has established the rule now asserted by counsel, seems to me rather
Counsel for Mrs. Hubbard further argue that section 18 of the. Personal Property Law, which was enacted in 1897, is even stricter with respect to the present question than section 176 of the Real Property Law, which was applied in the two cases just discussed, in that it contains the word “ therein,” not appearing in the Real Property Law. It is suggested that evidence should be excluded under section 18 of the Personal Property Law even though admissible under section 176 of the Real Property Law. It is most unlikely, however, that the Legislature intended to create any distinction between real and personal property in this respect. (See Hutton v. Benkard, supra, at p. 305; Notes of the Commissioners of Revision on section 6 of Personal Property Law of 1897, as reprinted in Fowler’s Personal Property Law of New York [2d ed.], p. 273.) Moreover, the word “ therein ” really adds nothing, because the will itself is in any case the only permissible medium for expressing the testator’s intent. A precisely similar contention was advanced in the Supreme Court of Illinois in connection with a statute preserving an intestate share to an after-born child not provided for in the will, but was rejected in the following language: “Appellant insists that section 10 of chapter 30 (Hurd’s Illinois Statutes), ex vi termini precludes the court from looking to anything except to the words of the will itself. This argument is based upon the phrase, ‘ unless it shall appear by such will that it was the inten
It is true that some authorities interpreting the statutes for after-born children have reached a different conclusion (Chicago, B. & Q. R. v. Wasserman, 22 Fed. 872; Carpenter v. Snow, 117 Mich. 489; 76 N. W. 78), but their reasoning seems less convincing than that above quoted.
To the question, what change was made in the law by Personal Property Law, section 18, and Real Property Law, section 176, the answer seems to be that there was none in the theory that the execution of the power depends in the first instance on the expressed intent of the testator as found in the will read in the light of the surrounding circumstances; but unless the will as so read negatives the intent to execute the power, either expressly or by necessary implication, the statutes step in with a legal presumption and declare the power executed by the disposition of all the testator’s property (Lockwood v. Mildeberger, supra, p. 187). I do not feel that Lockwood v. Mildeberger is authority for the view that extrinsic evidence can no longer in any conceivable case assist in compelling an implication of intent not to execute the power, where no such intent would be necessarily implied without such evidence. Nor do I read the case of Speir v. Benvenuti (197 App. Div. 209) as such a holding. The extrinsic evidence there under consideration related to another document claimed to be inconsistent with the exercise of the power of appointment, the use of which to change the meaning of the will would obviously have been a violation of substantive testamentary law. In Maynard v. Maynard (108 Misc. 362, 365), on the other hand, the court took into consideration the condition of the estate of the testator and the circumstances attendant upon the execution of the will in determining whether the power of appointment had been exercised.
The second division of Judge Cutting’s testimony relates to the method of executing powers of appointment under the law of Illinois and his advice to Mrs. McCormick in that connection. It is argued on behalf of Mrs. Hubbard that this evidence is inadmissible because of the fact that the question whether Mrs. McCormick’s will was effective to exercise the power of appointment is to be determined by the law of New York and not by the law of Illinois. The latter contention is undoubtedly correct, as shown by the cases heretofore cited, and I do not understand that it is questioned by the other parties. We are here concerned, however, not only with the construction of a trust deed created by a resident of New York, but also with interpretation of the will of a testatrix domiciled in Illinois, and the immediate subject of inquiry is the actual intention of the latter as expressed or necessarily implied in this will. The plaintiff claims that the evidence of the Illinois law and the witness’ conversations on that subject with the testatrix throw light on her meaning as expressed by the proper interpretation of the words which she has used; and that while the effect of that meaning upon the trust fund must be determined by the law of New York, the actual discovery of the meaning itself will be aided by realization of the manner in which these words and phrases are used in the State of Illinois, the domicile of the testatrix, and her acquaintance with such use.
The distinction may seem a fine one, but it is logical and may be useful. The New York law, as already stated, does not hold that the actual intention of the testatrix in respect to this power of appointment is irrelevant or immaterial; it merely holds that an intention not to execute the power must be shown either expressly or by necessary implication from the language of the will. It does not exclude from consideration the real meaning of the language of the will, and such real meaning can be obtained from the surrounding circumstances, one of which would seem to be the customary usage of such language in the State of Illinois. Reason and common sense suggest that Mrs. McCormick meant by her words what such words customarily mean at the place of her domicile, and especially what she was told they mean by her legal adviser. Con
“ In determining the true intent and meaning of a will the court will have recourse to the circumstances of the testator and of his family and affairs, and of other facts which it can be shown will in any way aid the court in the right interpretation of a testator’s will. [Authorities.] Under this rule we have no doubt that if a will executed in a foreign country contains words or phrases which have a local or domiciliary meaning different from the meaning of the same words or phrases in this State, with which the testator is shown or presumed to have been acquainted, extrinsic evidence of such domiciliary meaning may be heard to enable the court to read the will with the same light under which it was written. In this view it can make no difference how such domiciliary meaning was established. It may be by the usage or custom of merchants or traders in the place where the instrument was executed, or may be a meaning established by statute or judicial decision. But however established, the usage or law, and the meaning of the words thereunder, are proven, not to establish a rule of law binding on the court charged with the proper interpretation of the will, but simply as a fact or circumstance proven to enable the court to arrive at a correct construction under the laws of the forum.” (Peet v. Peet, 229 Ill. 341, 352; 82 N. E. 376.)
Judge Cutting’s qualifications to speak as an expert on Illinois law were amply proved. What is said here, however, does not render admissible his opinion as to the legal effect of Mrs, McCormick’s will upon the property subject to the power of appointment, and it is also subject to the question reserved above concerning the confidential nature of his testimony.
The third division of the testimony of this witness concerns conversations with Mrs. McCormick or declarations by her, expressing directly or in effect her intention or desire not to exercise the power of appointment. This testimony is. governed by other considerations. It is well settled that evidence of a testator’s declarations of intention cannot be accepted in interpreting his will, even though they might logically seem helpful for that purpose,
There remains to be considered the objection that the testimony of Judge Cutting is inadmissible because of sections 353 and 354 of the Civil Practice Act, which relate to confidential communications between attorney and client. The relationship of attorney and client existed between Judge Cutting and Mrs. McCormick. He drew the will and was one of the witnesses to its execution. In so far as the subject-matter of his testimony consists of confidential communications, it is inadmissible unless excepted from the general prohibition of these sections by the following language of section 354, viz.But nothing contained in this section * * * shall be construed to disqualify an attorney * * * in the probate of a will heretofore executed or offered for probate or hereafter to be executed or offered for probate * * * from becoming a witness, as to the preparation and execution * * * whether such attorney is or is not one of the subscribing or attesting witnesses thereto.”
It will be noticed that the sentence quoted permits the attorney who is a subscribing witness to testify “ in the probate of a will heretofore executed or offered for probate or hereafter to be executed or offered for probate * * * as to the preparation and execution.” This does not permit testimony as to a prior will, similarly witnessed but revoked (Matter of McCulloch, 263 N. Y. 408). I do not understand that any objection is made to Judge Cutting’s testimony in this action on the ground that it does not relate to the preparation and execution of the will of August 4,1932. Objection is made, however, that the testimony is not offered “ in the probate ” of that will; that the probate of the will took place previously in Chicago and that the only matter here at issue relates to its interpretation or construction; and that in such a proceeding the attorney who drew the will is not relieved of the obligation of secrecy.
The term “ probate ” is commonly used with reference to the formal establishment of a document as the last will and testament of the testator as a basis for the distribution of his property and the issuance of letters testamentary to the persons named therein as executors. Probate, in this sense, usually takes place at the
Several cases involving the admissibility of evidence of an attorney-witness in a proceeding, other than its admission to probate, have been before the Court of Appeals, but in none of them has that court expressed an opinion on the Competency of the witness. In Dwight v. Fancher (245 N. Y. 71) the court expressly refused to pass upon the question. Matter of McGowan (254 N. Y. 513) was an affirmance without opinion of a decision of the Appellate Division (228 App. Div. 779), itself affirming without opinion a decision of the Surrogate’s Court of Engs county in which certain testimony of the attorney-witness was received by the surrogate, although other testimony of the same character from the same witness was stricken out on objection. The testimony retained had been given without objection, but on cross-examination, and it is now argued, on one side, that the affirmance by the Court of Appeals is in effect an affirmation of the admissibility of this kind of testimony, and on the other, that the result was reached in all courts without any dependence upon the attorney’s testimony. The case certainly throws no strong light upon the question.
In Matter of Coughlin (171 App. Div. 662; affd., 220 N. Y. 681) the attorney who drew the will and was a witness to it was allowed to testify as to. confidential communications on the question of interpreting the will because of a latent ambiguity. This question of construction was raised by one of the parties upon the probate of the will, as authorized by section 145 of the Surrogate’s Court Act. The opinion of the Appellate Division contains a sentence to the effect that the testimony of the attorney was not privileged, being given by a subscribing witness, but it is now said here that this question was not argued in the briefs, either before the Appellate Division or the Court of Appeals, the sole contention relating to the adequacy of the testimony even if given by a layman.
In Baumann v. Steingester (213 N. Y. 328) the Court of Appeals held that testimony of an attorney-witness was improperly rejected in an action for the construction of the will, but placed its decision on the ground that the communications were not confidential,
No argument has been advanced assigning any reason of logic or policy to sustain the narrow construction of the word “ probate ” in this connection. If the attorney is permitted to disclose the testator’s confidential transactions and communications for the purpose of showing that the will was duly executed, there appears no reason for suppressing his knowledge which will throw light on the testator’s meaning. The persuasive views in regard to the testator’s probable intention expressed by the court in Matter of Coleman (supra), as well as the “ satisfactory reasoning ” of the common-law principle as approved in Matter of Cunnion (supra), are equally applicable to the present situation. Especially is there little reason for distinguishing between admissibility for the purpose of construction when the question is raised in the probate proceeding and when it is raised in some other form of action.
If it be necessary to give a narrow construction to the word “ probate as meaning only a proceeding in which the will is originally established, it may be considered that the present proceeding is such an original proceeding, at least so far as relates to the execution of the power of appointment. Neither the probate nor the failure of probate of the will at the domicile of the testatrix is conclusive evidence upon the issue here as to whether the donee of the power executed an instrument to carry it into effect. (Blount v. Walker, 134 U. S. 607; Matter of Harriman, 124 Misc. 320; affd., 217 App. Div. 733.) While an exemplified copy of the probate at the domicile is sufficient evidence of the execution of the instrument (Matter of Marsland, 142 Misc. 230), it is not the only evidence (Matter of Harriman, supra), and the testimony of the subscribing witnesses may be received, although perhaps only cumulative where an exemplified copy has been already admitted. There is nothing in Matter of Harriman to suggest that in order to show the execution of the power of appointment the will can be established only in the Surrogate’s Court. As a foreign will it could apparently be established in the Supreme Court under section 200 of the Decedent Estate Law. Such a course was followed some years ago in a case with which I am familiar.
Accordingly, I conclude that the testimony of Judge Cutting is not prohibited by sections 353 and 354 of the Civil Practice Act.
Decision was also reserved on the plaintiff’s offer in evidence of a prior will of testatrix, executed in 1931, which was marked as Plaintiff’s Exhibit F-2 for identification. (See record, p. 160.) Neither Mrs. McCormick’s intention in 1931 with respect to the
The present rulings are rulings only upon the admissibility of Judge Cutting’s testimony and are not to be taken as any indication of conclusions of fact or law to be based thereon. The fundamental issue remains as it was, namely, whether the will of Mrs. McCormick, when its real meaning is understood from its words read in the light of surrounding circumstances, shows expressly or by necessary implication an intention not to execute the power of appointment.
The principles of these rulings will now be applied specifically to the objections noted in the record. The sustaining of an objection to a question will be deemed an exclusion of the answer.
• (Specific rulings omitted.)
See, also, amendments by Laws of 1935, chap. 200; Laws of 1936, chaps. 139, 493.