149 N.Y.S. 577 | N.Y. Sup. Ct. | 1914
On July 5, 1913, Francis W. Doolittle died at his home in the village of Canastota, Madison county, N. Y. Most of his life had been spent in that village. He left a last will and testament, which had been made and executed by him! in the month of January, 1912. The will was duly admitted to probate, and letters testamentary issued to his daughter, Nellie O. Parsons, whom he had named as executrix thereof. This action was brought for a construction of the will, and was tried at an adjourned Special Term of the Supreme Court in this county, April 7, 1914. Nearly every provision of the will is involved in the issues presented by the pleadings, and the testamentary provisions of said will are as follows:
“I, Francis W. Doolittle, of the village of Canastota, in the county of Madison and state of New York, being of sound mind and memory, do make, publish and declare this my last will and testament, in manner following, that is to say:
“First. — I direct that all my just debts and funeral expenses be paid.
“Second. — I give, devise and bequeath unto my daughter, Nellie O. Parsons, that part of my real estate consisting of my lots on the Homestead addition in the village of Canastota, county of Madison and state of New York.
“Third. — I give, devise and bequeath unto my grandson, 'Benjamin Grants, my slaughter house lot situate on the highway leading from the Indian Opening road to the road leading northerly from Main street in the village of Canastota.
“Fourth. — I give, devise and bequeath unto my daughter, Minnie Grants, the use, income and profits of my real estate on Taylor avenue in the village of Canastota and at her decease I give, devise and bequeath the same unto her heirs.
“Fifth. — I give, devise and bequeath unto my said daughter, Nellie O. Parsons, one-fourth of all the rest and remainder of my estate both real and personalty, absolutely and forever.
*579 “Sixth. — I give, devise and bequeath unto my daughter, Charlotte Grems, the use, income and profit of one-fourth of the remainder of my estate with the privilege of using the principal thereof if at any time, in the discretion of my trustee, hereinafter named, it shall become necessary for her proper maintenance, care and support. At her death, I give, devise and bequeath the same to the heirs of said Charlotte Grems.
“Seventh. — I give, devise and bequeath unto my daughter, Minnie Grants, the use, income and profits of one-fourth of my estate both real and personalty with the privilege of using the principal thereof, if in the discretion of my trustee, hereinafter named, it shall become necessary for her proper maintenance, care and support. At her death, X give, devise and bequeath the same to the heirs of said Minnie Grants.
“Eighth. — I give, devise and bequeath the use, income and profits of one-fourth of the remainder of my estate to my daughter, Carrie O’Hara, with the (privilege of using the principal thereof, if in the discretion of my trustee, hereinafter named, it shall become necessary for her proper care, maintenance and support. I make this provision realizing the fact that my said daughter, Carrie O’Hara, has no children and it being my desire that this portion of my estate shall not pass from my heirs. At the death of said Carrie O’Hara, I give, devise and bequeath the same to my heirs.
“Ninth. — I further direct that my hotel and fixtures, known as the ‘Doolittle House’ shall not be sold before the death of my youngest daughter, Charlotte Grems, it being my desire to perpetuate the family name as long as possible, unless in case said hotel should be burned down by fire.
“Tenth. — I hereby empower my executor hereinafter named to sell any and all of m.y real estate except the above mentioned Doolittle Hotel.
“Lastly. — I hereby appoint my said daughter, Nellie O. Parsons, trustee and executrix of this my last will and testament, hereby revoking all former wills by me made.”
Francis W. Doolittle left him surviving Nellie O. Parsons, Minnie Grants, Charlotte Grems, and Carrie O’Hara, daughters; also Francis
D. Grems, Benjamin F. Grants, George D. Grants, grandsons, Juanita M. Grems, Mandala Grems, granddaughters, and Charles O’Hara, an adopted son of Carrie O’Hara. Francis D., Juanita M., and Mandala Grems and George D. Grants are infants. The adopted son of Carrie O’Hara is also an infant, and all are parties to this action.
Decedent’s only next of kin and heirs at law are his daughters first above named. Doubt is expressed as to the proper meaning and construction of clauses 6, 7, 8, 9, and 10 of said will, and as to whether the testator created a valid trust under the provisions of said will, and as to how the corpus of said estate should be held. The defendant denies that any doubt has arisen in her mind as to the meaning and . construction of said will, and, in effect, claims by the evidence under her answer that a trust was created and that she holds the property. as such trustee.' The property left by decedent consists of both real and personal estate amounting to about $40,000 in value, and about equally divided, real and personal.
“When the language of a' provision of a will is plain and free from ambiguity, effect must be given to its import. When it is equivocal, the intention of the testator in the use of the language employed by him must be sought for by reference to all the provisions of the will, and to such circumstances as may properly be entitled to consideration. And in such case there*580 is no inflexible rule of interpretation to govern the determination of that inquiry. While rules of construction may aid somewhat the way to a conclusion, they are not to be used to frustrate the intention of the testator; but when that is ascertained the language and mode of expression, if of doubtful import, may be subordinated to such intention.”
Again in Starr v. Starr et al., 132 N. Y. at page 158, 30 N. E. at page 385, the court says:
“In construing wills the court may transpose, reject, or supply words so that it will express the intention of the testator.”
Again in Cammann v. Bailey, 210 N. Y. at page 30, 103 N. E. at page 827, in the opinion, the court lays down the rule as follows:
“The intention of the testator being reasonably clear, it is quite unnecessary to discuss the decisions made in other cases involving the vesting of property held in trust. Rules for the construction of wills are for the sole purpose of ascertaining the intention of the testator, and if the intention is clear and manifest it" must Control, regardless of all rules that have been formed for the purpose of determining their construction.”
When we discover the true intention of the testator, if it does not offend against any provision of law, the plain duty of the court follows, viz., to declare it in the judgment.
At this point it is well to look at the situation as disclosed by the will, the evidence, and argument of counsel. The testator had four daughters him surviving. . That he had most confidence, by reason of her situation and experience, in the daughter, Nellie O. Parsons, named as executrix in his will, seems properly inferable. This is evidenced by the fact that he gave her upwards of one-fourth of his estate outright, named her executrix, and placed, or attempted to place, upon her the responsibility of dealing out more than the use of the fund created for the benefit of three of his daughters as she should deem necessary. Then comes a review of the kind of property that constitutes the several funds, or the residue after the specific legacies are satisfied, $20,000 real and $20,000 personal. The real estate consists, as appeared upon the argument, of 11 different parcels of different values. That testator did not intend that this property should be used, operated, and occupied by four different persons with different interests, subject to internal disputes and consequent frequent litigations, is to be strongly inferred. In three different instances he provides that the life beneficiaries may use “the principal thereof, if at any
The essential elements of any express trust are a trustee, an estate devised to him, and a beneficiary. The trustee and the beneficiary must be distinct personalities. Greene v. Greene et al., 125 N. Y. 506, 26 N. E. 739, 21 Am. St. Rep. 743." This is elementary, and the conditions exist here, if the testator has not failed in some other vital essential.
My attention is called to the provisions of section 96 of the Real Property Law (Consol. Laws, c. 50), which section defines the purposes for which an express trust may be created. To create a trust it is not necessary to follow the words of the statute. In Central Trust Co. v. Egleston, 185 N. Y. 23, 77 N. E. 989, we read :
“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.”
Plaintiff relies largely on Verdin v. Slocum, 71 N. Y. 345. There was no attempt there to rely upon a trust until creditors sought to assert their right under a judgment against the interest of the beneficiary, and he took nothing but the use. It seems this case is distinguishable from the case at bar. The trust attempted in the Matter of Bleckwehl’s Will, 80 Mise. Rep. 468, 142 N. Y. Supp. 449, may well have failed, as absolute power of disposition was placed in two of the beneficiaries. Judge Vann, in Close v. Farmers’ Loan & Trust-Co., 195 N. Y. at page 99, 87 N. E. at page 1007, says:
“He thus clothed his executors with the power and duty of executing an express trust, as authorized by law. He did not call them trustees, nor term their position a trust; but neither is necessary to constitute a trust, provided the powers and duties are those of a trustee. He did not expressly give them title to the property, but that passes by implication when involved in the general scheme and intent.”
The learned judge then quotes with approval Mee v. Gordon, 187 N. Y. 400, 80 N. E. 353, 116 Am. St. Rep. 613, 10 Ann. Gas. 172, where the power to collect rents and profits was upheld in the executor as trustees, although no such power was expressly in words given by the will.
It clearly appears from the will that the testator believed three of his daughters would need more than the income from a one-fourth of the residuum of his estate for their proper support and maintenance.
I think his purpose is plain, that it does not violate any rule of law, and under the authorities can be carried out. Nellie O, Parsons is trustee under the will of the testator. She is entitled to possession of the whole estate, as trustee, except the specific legacies disposed of by the will, and not subject to sale, except for payment of debts, etc. See paragraphs of will second, third, and fifth. This holding is necessary and legal to carry out the intention of the testator and to properly conserve the estate. Plaintiff and defendant are each entitled to a bill of costs, to be taxed, out of the estate. The attorney for the guardians is hereby allowed $100 for his services and expenses.
Let findings and judgment be prepared accordingly.