158 N.Y.S. 456 | N.Y. Sur. Ct. | 1916
This proceeding is instituted, pursuant to chapter 18 of the Code of Civil Procedure now in force, for a construction of the will of Charles Frederick Fowles, deceased. The facts stated in the petition, promoted and filed by Hr, Fowles’ executor, are not controverted, and are, therefore, for present purposes, to be taken as true. The various answers of the parties respondent do not raise issues of fact, but content themselves with recitals of the legal positions or claims of the respective respondents.
On the hearing Hr. Prendergast, the counsel who drafted the will of Hr. Fowles, and also the simultaneous will of his wife, was called to the stand without objection, and without objection or exception was permitted to testify. His testimony was, however, inconsequential, as it did not go beyond presumptions which the law itself draws from Hr. Fowles’ will and coverture. Whether, as an abstract question, the testimony of Hr. Prendergast is entitled to be taken into consideration by the surrogate in this proceeding I must hereafter consider, as the range of extrinsic evidence permissible in'proceedings of this character is very limited, and illegal evidence, even if offered without objection or exception, cannot be considered -by the surrogate in matters of construction. The Statute of Wills requiring wills to be in writing permits no other evidence of their intention, purport or effect, except in certain well-defined and special instances. I am very much opposed to innovations on this established principle in courts of construction, and for this reason shall not pass the testimony over without giving it further consideration.
It appears that the testator died on the 7th of Hay, 1915,
I shall consider in limine the legal effect of the testimony of the counsel drafting the several wills. It would seem neither
Let me refer for a moment to the general law governing successions from commoñenies who perish in a common disaster. The .principle df the common law, that in the absence of all proof of actual survivorship there is no presumption of survivor-ship among those who perish in a common disaster, and no presumption .of simultaneous death' was referred to at length by me in my decision in a proceeding in this court involving the deaths in a common disaster of the Laffargue family. (Matter of Hermann, 75 Misc. Rep. 599, 601.) My decision was affirmed by a divided court. (Matter of Laffargue, 155 App. Div. 923.) The Laffargue case, however, ultimately turned on slight proof of actual survivorship, reinforced by circumstantial proof. Singularly enough, long after the formal confirmation of my judgment, I happened to read 'a very old case, now part of our common law, in the absence of conflicting domestic authority. (Broughton v. Randall, Cro. Eliz. (A. D. 1596) 503.) This .old case, precisely in point, would have beep conclusive of the Laffargue case, but fortunately my decision conformed in every respect with the old decision stating the common law. That the common law of England and this State, unlike the civil law, raises no presumption of survivor-ship, in the absence of all proof of the fact is familiar to us all. (Underwood v. Wing, 19 Beav. 459 ; Newell v. Nichols, 12 Hun, 604, 75 N. Y. 98 ; Wing v. Angrave, 8 H. L. Cas. 183.) In some other States of the Hnion, while there is no presumption of survivorship, there is a presumption of simultaneous death where persons are shown to have perished in a common disaster and there is no proof forthcoming of survivorship or moment of death. (Johnson v. Merithew, 80 Maine, 111;
That the common law raises no presumptions whatever in cases of this character is, perhaps, not always an advantage in the administration of justice. In Matter of Laifargue I referred to the unjust criticism of the presumptions of survivor-ship entertained in the civil law, with proper reference to the texts of the Pandects, and I attempted to show that- in some instances the civil law presumptions were entirely reasonable and logical. Had the common law presumed simultaneous death, it would not have been a violent presumption, and there would have been at least one established premise for our courts of construction to work on. At is it, there is none in this. State. The common law of England and the common law of this State treat survivorship or time of death as absolutely insoluble in the absence of proof. The result is that the onus at common law is. placed on those asserting either the survivorship or the simultaneous death of one of two persons who perish in a common disaster. As a generality, the fact of death in a common disaster is susceptible of proof, but the relative time of the individual deaths of commorientes is not often susceptible of proof. Thus it is in this case: Whether Mrs. Eowles perished at the same moment as her husband, or before or after him, stands without proof, and under the circumstances the common law raises no presumption whatever. Whether there
The effect of the 9th clause of Mr. Fowles’ will will now be considered. It will be regarded first as a direction to a court of construction to reverse an accepted rule of the common law and thus reverse a rule of construction based on that rule. What effect, if any, can this direction contained in the 9th clause of Mr. Fowles’ will have, regarded only as a direction to the court ? This point, while insisted on, is not- much argued in the briefs, and then without citations of authority. In my judgment the direction in question .can have no effect, regarded as a direction to a court of construction. Presumptions prescribed by the common law and rules of construction based thereon are fixed and immutable and cannot be thus directed to be altered by. the court to meet particular oases. In the French law it is said, according to my own translation, that a testator may in his will impose no condition which wounds the law or good morals. (1 Troplong Donations et Testaments, § 272.) It seems to me that this author expresses with the usual Gallic clearness the proper limitation on testamentary directions of all testators. Our system of jurisprudence is not different on this point. Directions in wills in order to be upheld must contravene neither the law nor good morals. The effect of an unauthorized imposition on testamentary gifts I had occasion to review in Matter of Anonymous (80 Misc. Rep. 10), reported as Anonymous in Order to save an obscure child from publicity, obloquy and threatened expulsion from school. The unlawful direction in that case was, however, a condition subsequent and not a direction for construction, but, mutatis mutandis, I find myself unable to -add more to the reasons there assigned for
But it seems to the surrogate that the 9th clause of Hr. Eowles’ will is not to be taken as a direction by testator to a court of construction to alter an established presumption or canon of construction. It is susceptible of another meaning. In the construction of wills .an illegal intendment on the part of a testator will not be presumed if another construction is possible. (Roe v. Vingut, 117 N. Y. 204, 218 ; Smith v. Edwards, 88 id. 92, 102 ; Matter of De Bolet Peraza, 72 Misc. Rep. 577, 581.) Words which admit of a twofold construction — one valid, the other invalid —• will always be given the sense which validates them. (Pond v. Bergh, 10 Paige, 140 ; Butler v. Butler, 3 Barb. Ch. 302.) It is hardly worth while to waste time in citing authorities for such an elementary rule of construction of all written instruments as “ Ut res magis vaZeat quam pereat.”
Eor is it necessary to do more than refer to that cardinal principle of construction (not peculiar to wills alone, but common to all other writings) that the intention of the makers is always to govern construction. But I must not forbear to notice that in the interpretation of wills a will is to be regarded as a unilateral instrument and not a bilateral juristic act! In the course of the development of our own system of jurisprudence—• the common law—a devise, as contrasted with a testament, was at one time regarded as a conveyance. During the prevalence of this conception there was a tendency for a time to regard a will of lands as a bilateral juristic act, and the earlier canons of construction applicable to devises were somewhat influenced by this tendency. But that time has long passed, and a last will and testament in our laws is now regarded as a unilateral instrument for the purposes of interpretation.
It is to me obvious that Mr. Eowles’ real intention by the 9th clause of his will was to prevent a lapse in the event of Mrs. Eowles’ incapacity in any way to take under his will. In that event Mr. Eowles intended that there should be a substitution of some one else in her place. There is nothing contrary to any rule of law in this intention. Shifting uses and executory limitations, freely allowed at common law, were largely matters of substitution. Whenever there is in a will an intention to substitute another in the place of a legatee or devisee dying during the lifetime of -a testator, or at the same time as testator, or immediately after testator, so as to be unable to take and hold, then that other named as substitute' will take by substitution, if vesting is concurrent and there is no perpetuity. ]S[o rule of law is then violated by this principle, and it enables us to give effect to the obvious, intention of the testator: Substitution is the common remedy for lapse. In order to meet the difficulties of the common law in' the instances of commorientes nearly allied by blood, affinity or consanguinity, there . seems to be a tendency in the United States to hold that a gift over, if principal legattes “ die before testator,” is substitutional. (Young Women’s Christian Home v. French, 187
In testaments the wishes of testators are to be very liberally expounded in all courts of construction. “In testcumentis plenius volúntales testantium mterprei(mtur/J (Paulus, ff. 50, 12.) This rule of.the civil law was long since adopted by our courts, as may be seen in Emerton’s admirable treatise entitled “ Be conjecturis ultin\arwn Voluntatum.” (Page 68, Oxford, 1884.) Mr. Emerton reviews the civil law principles z generally taken over by courts of construction operating under the common-law system. Unfortunately for its popularity, Mr. Emerton’s treatise is' written in Latin. But it makes evident that a principle of construction which is 2,000 years old is still in viridi observantia. A principle so old is certainly entitled to every consideration in courts-of this character. The rule of construction cited means that the lawful intention of the testator should be supported fully by every solid and reasonable conjecture. It is self-evident that Mr. Fowles knew that his wife could take no personal benefits under his will if she
That the courts of this State are inclined to construe gifts for the benefit- of a person, if he die before testator, as substitutional, in order to. defeat a lapse where that is the expressed intention of testator, is disclosed by Matter of Piffard (111 N. Y. 410). In principle that case is decisive of this, although the facts differ. But it is not the similarity of the facts which causes a decision to be a precedent, but the relevancy of the principle laid down. o According to the doctrine of stare decisis, which is a fundamental of the common-law system, the only thing in a decision binding as an authority is the right principle upon which the ease was decided and not the application of such principle. (Matter of Tod, No. 1, 85 Misc. Rep. 298, 303, 304.) This is so obvious to .all persons familiar with the development of the common law that it needs no citation of authority. In Matter of Piffard the legatee Sarah predeceased the testator, and in that event her sharefwas directed to be paid over to her executors. The gift over was sustained as substitutional in order to prevent a lapse. Every argument urged against the conclusion reached by the court is identical with those urged here.
That common-law courts are inclined to a large and liberal construction in order to carry out the expressed intentions of testators is evident from such famous cases as that of Masters v. Masters (1 P. Wms. 421), where a legacy to a Mrs. Sawyer Was held to be intended for a Mrs. Swapper, as testator knew no such person as Mrs. Sawyer. The court properly held in that case " id cerium, est quod certum reddi potestThe identification of legatees may be aided by extrinsic evidence.
The principle of exclusion applies in interpretation of wills. From the 9th clause of Mr. Fowles’ will it is apparent that testator intended to exclude or segragate from his general estate the legacies given to the use of his wife: These he appropriated to her in all the events which occurred or could have occurred. In no event did he intend that these legacies- shoitld accrue by his will to his own next of kin. When this is certain beyond all peradventure, the court should not be astute to find reasons for benefiting directly those whom' in no event testator1 himself wished to be benefited. To benefit by construction those not intended by testator to be benefited is contrary to- all systems
'My conclusion is that the executors of Mrs. Fowl® are entitled by substitution to the sum of $5,000, bequeathed by the ° testator to his wife in subdivision 8 of paragraph 2 of the will, to the bequest of personal property contained in paragraph 4 thereof, and to one-half of forty-five per cent, of the residuary. The devise of .testator’s real estate at Cobham, county Surrey, England,, was made upon the condition that the devisee elect to take it at a valuation of £8,250. The right of election was given to her personally and is extinguished by her death; it cannot be exercised by her executors. Her failure or incapacity to exercise the election per se defeated the devise and the alternative disposition directed by the testator takes effect, namely, that- the real estate be sold and the proceeds added to the residuary.
The manner in which the executors of Mrs. Fowles’ estate should pay over this" property cannot be determined by the court in this proceeding, as her will is not properly before the court for construction. The surrogate will not consider in this proceeding a construction of the will in its relation to the proceeding now pending to determine the transfer tax upon the estate of the testator as the state comptroller is not a party to this proceeding.
Decreed accordingly.