58 N.Y.S. 536 | N.Y. App. Div. | 1899
This action was brought to obtain a construction of the will of Matthew Hooker, who died November 30, 1897, possessed of real and personal estate amounting to about $50,000, and whose will is as follows:
“ I, Matthew Hooker, of the city of Brooklyn, do make, publish and declare this to be my last will and testament as follows:
“ First. I order and direct the payment of my funeral and testamentary expenses and all my just debts.
“ Second. I give and bequeath to my wife, Caroline C. Hooker, all my household furniture of every description.
“ Third. I give, devise and bequeath to my executor hereinafter named all the rest, residue and remainder of my estate, both real and personal, in trust, for the following uses and purposes:
“ To invest and reinvest the same in such securities as are allowed by the laws of the State of New York, and dispose of the income resulting therefrom as follows:
“ 2. If my said wife should remarry, I order and direct my ■executor to pay to her immediately after said remarriage the sum of two thousand ($2,000) dollars. If my said wife should survive my two daughters, and they leave no issue, then I order and direct my said executor to pay to my said wife the sum of twenty-five thousand ($25,000) dollars. Each and all of the provisions made for the benefit of my said wife herein are to be accepted by her in lieu of all claims for dower against my estate.
“ 3. If either one of my daughters should die leaving issue, such issue to receive the share of the parent at the age of twenty-one years.
“4. Upon the death of my daughters, leaving no issue, and after the provisions of this my last will made for the benefit of my wife .shall have been carried out, I order and direct my executor to divide the balance of my estate into four (4) equal parts and dispose of the same as follows:
“ To pay to my brother George, residing at Burwashwheel, Sussex, England, one of said parts, or in the event of his death to his heirs; to pay to my sister Mary Walker, formerly Mary Hooker, residing in England, one of said parts, or in the event of her death to her children in equal shares; to pay to the wife of my brother David ■one of said parts, or in the event of her death to the daughters of my said brother David in equal shares; to pay one of said parts to Percy Forey, son of my sister Adah, or in the event of his death ■said part to be divided equally among the other beneficiaries mentioned in this clause of my will.
“Fourth. I hereby nominate, constitute and appoint The People’s Trust Company of the City of Brooklyn executor and trustee under this my last Will and Testament, and request that it shall not*239 be required to give bonds as such, and I hereby empower it to sell, assign, transfer, mortgage and convey, by good and sufficient acts and conveyances in the law at snch time or times as they may deem proper, at public or private sale, any and all of my estate, both real and personal, for the purpose of carrying out the provisions of this my said last will as hereinbefore mentioned, and I hereby revoke all former wills by me heretofore made.”
The substance of the decision of the Special Term is (1) that the annuity to the widow is a mere charge on the estate in the hands of the executor, and that the direction for its payment did not create a trust for that purpose; (2) that subject to the charge of the annuity7 the testator, by his will, constituted three trusts, each in a third of his estate, one in favor of the widow during her life, and one for each of his daughters during her life; (3) that as to the remainder after her death in the corpus of the share held in trust for the widow, the testator died intestate, and that that share passes to the next of kin; (4) that as to each daughter’s share on the death of such daughter if leaving issue the share passes to the issue, if without issue the income should be paid to the survivor; (5) that if the widow survives both the daughters and the daughters die without issue, then the widow is to receive §25,000 from the principal of the estate; ((>) in case both daughters die without issue then, after the payment of $25,000 to the widow in case she survived both daughters, the remainder of the shares of the two daughters is to be divided between the four persons named in the 4th subdivision of the 3d clause of the will.
Even a casual perusal of this will shows the great difficulty of the task imposed upon the courts in determining its proper construction and the validity of its provisions, and the more carefully the will is examined the greater the difficulty appears. We suppose that, if possible, we are bound to give some interpretation to every7 will executed in conformity with the requirements of law, and to ascertain the intent of the testator. There must, however, be some limit to this rule, and a point may be reached where the language of a will is so confused and uncertain as to render it impracticable to say7, with any reasonable degree of certainty, what the intention or will of the testator is. The will before us approaches closely the border line, if it has not passed it. Two rules for the construction of wills
In disposing of the problem before him, the learned judge at Special Term has accomplished the first object, that is to say, the construction adopted by him renders the provisions of the will legal, but he has partially failed in the second, since the result of his coitstruction is that the testator died intestate as to the principal of one-third of his estate. But the whole structure erected by the decision of the Special Term rests on the proposition that the 1st subdivision of the 3d clause of the will does not create a trust for the payment of an annuity for the widow, but that the annuity is merely a charge on the estate which could be released by the annuitant, or be satisfied by the purchase of an annuity for her benefit. This view, we think, erroneous. In Cochrane v. Schell (140 N. Y. 516) it was distinctly held that a trust for the payment of an annuity is a valid express trust under the Statute of Uses and Trusts, and that the annuity is inalienable and cannot be assigned or released by the annuitant. The counsel for the respondents claim — a claim in which the learned judge at Special Term apparently acquiesced — that the Cochrane case was overruled by the later decision of Buchanan v. Little (154 N. Y. 147). We do not understand the later case to have any such effect. In the opinion in the Btochanan case there is no mention of the Cochrane case, and it is hardly possible that the earlier case would be overruled without the slightest reference being made to it. In the Buchanan case the trustees were directed to pay out of the income annuities to two persons during their respective lives, and divide the remainder of the income between two other beneficiaries, the testator’s two daughters, during their lives. The will constituted a single consolidated trust, and we suppose if there had been nothing else in the will than the provisions which we have alluded to, the trust would have been created for four lives, and, therefore, bad under the statute. But by the 6th clause of the will the testator in express terms, upon the death of his two daughters, gave all his property, real and personal, to
All the parties before us have assumed that the clause of the will under examination created a trust during the lives of the widow and the two daughters, the difference between them being that the respondents claim that there were three several trusts created, while the appellants contend that the trust was single. If this is the only question in the ease, then we hold that the testamentary dispositions of the will are void. It is with some hesitation that we proceed further, for it may be we are about to enter upon the. borderland between speculation or conjecture, and proof. However, we are of the opinion that none of the parties has succeeded in discovering the true intent of the testator. We have quite a strong belief that the testator really intended to dispose of his estate as follows : (1) To create a single trust of all his estate, the annuity and one-third of the surplus income above the annuity to be paid to the widow, the remainder of the surplus to be divided between the children, or in case of the death of one, to go to the survivor; this trust, however, to continue only during the lifetime of the widow, or until she remarried; (2) on the death or remarriage of the widow, the trust was to cease and the property go to his two children, or.the survivor, or their issue; (3) that the direction that in case of the dgath of a child leaving issue the issue shall take the share of their parent, and also the further provision that in case of the death of both children without issue, then, after the payment of the widow’s claim, the remainder of the estate shall be paid over to the four persons named in the 4th subdivision of the 3d clause of the will, refer only to the death of the children during the continuance of the trust, and that if the children or either of them survive the termination of the trust, their shares are not subject to defeat by subsequent death without issue. This scheme is comparatively clear and simple; it involves no intestacy and is legal, for in no event is the absolute ownership of the property or the absolute power of alienation suspended beyond the life of the widow. But it is not sufficient that such a will should be a natural one and legal, for we cannot make a will for a testator, however good our work may be. We must find
The proof that the trust was to continue only during the widowhood of the testator’s wife seems to us reasonably clear. That is the only period of time prescribed in the will. There is no direction that the executor shall apply any part of the income to either of the daughters during her life. In case one of the daughters should die pending the life of the trust, there is an express direction that her part of the income shall go to the survivor; but no provision is made for the disposition of the income on the death of the widow. The daughters were children of the age of eleven and fourteen years respectively. The natural expectation of the testator must have been that one or both would outlive their mother. The failure to make any provision for the disposition of the income in such an ■event seems to us entirely inconsistent with an intent that the trust should continue after the happening of that event. There is no express gift of the principal of the estate to the daughters upon the ■death of their mother, and if we find such a gift at all it must arise by implication from the subsequent provisions of the will and from the fact that the testator speaks of giving to the issue the share of their parent, thus indicating that the parent was in some event to have a share in the estate. The gift over in the 4th subdivision of the 3d clause upon the death of the daughters leaving no issue, if we construe that direction as referring to any period of time when the daughters may die without issue, suspends the absolute ownership of the property during the lives of the widow and the two ■daughters, and is, therefore, void. If limited, however, to the death of the daughters during the widowhood of their mother, the absolute ownership of the property is not suspended for more than one life. If the will is equally open to the two constructions, we must, therefore, adopt the latter, because it upholds the validity of the will. The will itself shows that such was the intention of the testator. Much of the difficulty in the construction of this will arises from the ■subdivision of the 3d clause and the separation of various provisions which should be read together. After having created the trust for the’ benefit of the widow, the testator then proceeds to announce his testamentary disposition in the case of contingencies, the ■occurrence of which might naturally be expected. In case
We are fully aware that, under the authorities (Matter of Tomjo
The judgment of the Special Term should be reversed, and judgment entered in accordance with this opinion, costs to all parties to he paid out of the estate.
All concurred.
Judgment reversed and judgment directed construing the will in •accordance with opinion óf Cullen, J., costs of all parties to be paid out of the estate.