18 Mills Surr. 494 | N.Y. Sur. Ct. | 1917
On the probate of the will objections were filed and later Avithdrawn. The Avill was proAred and a direction for probate consequently was giATen.
The validity and construction of certain clauses having been requested by some of the parties, the only questions now remaining are those relating to the true construction, interpretation and effect of the will. At the outset a technical objection is urged by the contestant, Mandana Parker Tobin, a sister of testatrix, that no construction can be obtained in this proceeding, because neither the petition for probate nor the citation prayed that relief. The ansAver filed by Ira Clark Hyde does request construction of the clauses numbered 5th, 6th, 7th, 8th and 16th of the will, and the special guardians for the infants, M. Carrie Parker, Dorothy Hyde, Uelson Cameron Hyde and Frederick' Hyde make similar reqAiests. This is sufficient. Section 2615 of the Code of Civil Procedure confers on the surrogate, jurisdiction to construe a will in a probate proceeding- when any of the parties expressly puts in issue such construction. It would seem that the surrogate’s jurisdiction has been sufficiently invoked and a ease made for construction by reason of the premises. As all the parties have had an opportunity of presenting their contentions, the surrogate should, I think, proceed to construe the will.
The disputed clauses of the -will are as follows:
“ Fifth. I give to M. Oarrié Parker, daughter of John
“ Sixth. I give and bequeath to my sister, 3Irs. Dana Tobin, my solitaire diamond bracelet. If she shall decease before me, then and in that case I give and bequeath the same to my niece, 31. Carrie Tremblay, of Philadelphia, Penn. But said bracelet in either case is given subject to condition that it shall be passed on to a direct descendant of 3Irs. 3Eary E. Sabin; one who shall be deemed best fitted to appreciate the same, and promise to carry out the wishes of 3Irs. Sabin in that respect.
“ Seventh. I give and bequeath to my niece, 31. Carry Tremblay, my 6-stone diamond bracelet (formerly owned by 3Ers. Sabin), but the said bracelet is given subject to the condition that at her decease it shall be given to a direct descendant of 3'Irs. Sabin; one who will appreciate the bracelet and carry out the wishes of the said 3Ers. Sabin in that respect.
“Eighth. I give and bequeath my cluster ring, formerly owned by 'Mrs. Sabin, to my niece, 3irs. Alice Hyde Sharp, but said ring is given subject to the condition that it shall be passed on at. her decease to a direct descendant of 3Irs. 31. E. S(abin, subject to same condition of all other articles formerly owned by 3'Ers. Sabin.”
“ Sixteenth. I hereby give and bequeath all the rest, residue and remainder of ray 'estate, real and personal, not herein disposed of (excluding the 29 remaining shares of Hoyt Realty Co.), to be divided equally by the following: 31. Carrie Parker,
It appears that testatrix left no husband or children and that her next of kin and heirs at law are collaterals.
The bequests df jewelry in the 5th, 6th, 7th and 8th paragraphs of the will are assailed by the special guardian for the infants, Eelson Cameron Hyde, Frederick Hyde and Dorothy Hyde, in the answer filed herein. It is averred that unlawful perpetuities are created and that the named beneficiaries take only a life estate, and that the remaindermen are not sufficiently identified. The sister of testatrix, Mrs. Tobin, contends that the ownership in the property mentioned in the above paragraphs was limited to a life estate for her own life, and therefore her will cannot make any valid disposition of that property. The statement of Mrs. Tobin’s intention is its own answer. The surrogate is not asked, in this proceeding, to determine the extent of the ownership of the deceased, nor is that question germane to a construction of the will. The jurisdiction given to the court to construe a will cannot be enlarged so as to enable it to determine the title of the testatrix, unless such an adjudication necessarily follows from a proper act of construction of her will.
The learned special guardian, in his brief filed, withdraws his contention, because he is now of the'opinion that the bequests of jewelry contained in the oth, 6th, 7th and 8th paragraphs of the will are not merely life estates, but are absolute bequests. I think that he is justified in taking this position. There is no language in the quoted clauses of the mil sufficient to cut down the absolute bequests, and under the well-settled
Restraints at one time permitted in alienations of realty have never been sanctioned for personalty. As was stated in De Peyster v. Michael, 6 N. Y. 427, and in Continental Ins. Co. v. Hew York & H. R. R. Co., 187 id. 225, 237, a restraint upon alienation can be imposed only where there is a reversion. As personalty is not a tenement, and there never was any feudal tenure of personal property, no reversion was left after the transfer of the absolute ownership of personal property. The rules relating to feudal tenure of. real property, prior to the statute Quia Emptores, had no relation to titles or owmership of personal property. It follows that it is unnecessary to determine whether the restrictions sought to be imposed in the will are precatory, or mere hortatory expressions of desire, or whether or not the language is sufficient to create conditions. Likewise we need not distinguish between the kinds of condition which may have resulted from such bequests of testatrix. An illegal condition attached to personalty, whether precedent or subsequent, is disregarded. (Matter of Haight, 51 App. Div. 310, 316.) Without further discussion our conclusion may safely rest upon the authority of the analogous case of Hacker v. Hacker, 153 App. Div. 270. As a rule future interests in personal property can be created safely only through the medium of trusts, although the Revised Statutes now permit the creation of some future interests.
Mrs. Tobin’s contention makes no distinction between the relative rights of T. J. Parker and H, Carrie Parker. She merely urges that no one received a bequest of the stock and that the income only was disposed of for a period of ninety-nine years. Hone of the other parties except M. Carrie Parker and T. J. Parker can be interested in litigating any question as to their relative rights. They do not urge opposite contentions, but acquiesce in viewing the gift to M. Carrie Parker as absolute. Therefore, reaching the conclusion that there was an absolute gift of the stock and not merely a gift of the income, no further question remains concerning the stock. M. Carrie Parker is the absolute owner thereof.
The remaining .questions involve a construction of the 16th, or residuary, clause of the will. In the first place, the special guardian for the three infants, Helson Cameron Hyde, Frederick Hyde and Dorothy Hyde, above named, and Mrs. Tobin urge that there is an intestacy as to one-third of the residuary,
In Matter of Turner, supra, the testatrix devised to “ Iohn Turner One house; George Turner One house; William L. Turner, one house.” The testatrix had, in addition to the houses specifically referred to in the will, three leaseholds on Uinth avenue. The Appellate Division held the bequest to the three sons void for uncertainty. The Court of Appeals reached a contrary conclusion, adopting the dissenting opinion below of Mr. Justice Miller, except in so far as that learned justice had held that the three sons took as tenants in common. The Oburt of Appeals held that each one of the sons was given a leasehold, with the right of selection in the order in which their names appeared in the will. Mr. Just-ice Miller in his opinion had said that the ambiguity in that case was a patent ambiguity, but that the only evidence not admissible in resolving this ambiguity was evidence of the declaration of the testatrix. 'The learned justice held that the circumstances surrounding the maker of the will were as admissible to explain a patent am
In deciding that evidence of surrounding circumstances was so admissible the Court of Appeals, in the Turner case, must be understood, I think, to mean circumstances surrounding the testator or testatrix at the time a will is made. Such evidence, limited to the time of the making of the will, in the case now before me, would be of no value whatever. Where the ambiguity consists in a description of a legatee, whose identity is not determinable at the time of the making of the will, evidence of the surrounding circumstances confined to that time can have no probative effect. The ambiguity in the Turner case related to an ambiguity in the description of the property attempted to be willed. The rule laid down in the Turner case, properly limited, must be taken to be that evidence is admissible of circumstances surrounding the maker of the will at the time the will is made in order to explain a patent ambiguity in the description of a legatee not in existence at the time of the will cannot be so explained. The Court of Appeals in the Turner case did not intend in any way to impugn the decision in Harrington v. Abberton, supra. The majority opinion of the Appellate Division cited that case, but neither Mr. Justice Miller nor the Court of Appeals made any comment about it, evidently believing that the case had no application.
•It follows that there is an intestacy as to one-third of the
The 16th paragraph of the will presents one more question: Is the gift of the remaining twenty-nine shares of stock in the Hoyt Realty Company void ? I think for the reason just discussed it is partly void for uncertainty. The first gift, however, is only of a life interest. Its invalidity does not affect the limitation of the future estate. 27. Cameron Hyde, the remainderman, takes the twenty-nine shares of stock as an absolute gift. (United States Trust Co. v. Hogencamp, 191 N. Y, 281.) The bequests to Fred Hyde, 27ellie 0. Hyde and Dorothy Hyde are all contingent upon the decease of 27. Cameron Hyde in the lifetime of the testatrix. The statement in the will that the Hoyt Realty Company stock cannot be sold is not a testamentary restriction in any way. It is merely a declaration by the testatrix of what she believed was a restriction upon the ownership of the stock.
The provision in the 16th paragraph of the will that any one disputing the will or bringing the will into dispute or controversy should have no part or share in the will is a condition in terrorem and without effect. While the will is offered for probate as a will of real and personal property, and though the residuary estate disposes of both, the assets of thé decedent to be administered by her representatives consist only of personalty. As there is no gift over expressly stated to take effect for breach of the condition it is invalid. (Matter of Arrow-smith, 162 App. Div. 623; 21 3 N. Y. 704.)
Decreed accordingly.