19 N.E.2d 1001 | NY | 1939
Arthur Clark, of Baldwinsville, New York, died January 27, 1931, leaving a last will and testament which was duly probated and under which the First Trust and Deposit Company of Syracuse was appointed and thereafter duly qualified and has been acting as executor and trustee.
In his will the testator first directed the payment of his debts and funeral expenses. In the second paragraph he made a specific bequest to his niece, Alpha A. Adsit. In the third paragraph he gave to his wife such sums as might be necessary to satisfy any mortgage or liens upon property owned by himself and wife jointly or as tenants by the entirety, together with other specifically named property. In the fourth paragraph he directed that all of the residue of his estate should be held by his executor in trust and that the income thereof should be paid to his wife during her life in quarterly installments. In the fifth paragraph of his will he provided specifically for the distribution upon the death of his wife of the corpus of the trust. Among the provisions therein contained he disposed specifically of three hundred shares of the capital stock of the American Telephone and Telegraph Company. In the sixth paragraph he said: "In the event that the income provided for *159 my said wife under paragraph `Fourth' above shall, in the judgment of my trustee, be insufficient for her every comfort and support, I authorize my said trustee to pay to her, in addition to income, such portion of the principal of the said trust as it shall from time to time deem necessary." Later on in the same paragraph the testator says: "I further direct my said trustee to retain as a part of my estate the said stock in the American Telephone and Telegraph Company."
On July 5, 1934, a decree was entered settling the accounts of the executor and directing the executor, among other things, to transfer and deliver to itself, as trustee, the balance of the assets on hand. On October 13, 1937, a petition was filed by the trustee asking for a judicial settlement of its account as such and for a decree determining the true construction and effect of the will of the deceased which involved the scope of the authority of the trustee to invade the principal of the trust for the benefit of the widow of the deceased. In its account the trustee disclosed that, after making distribution as required by the provisions of the decree of July 5, 1934, and payment of its commissions and expenses, there remained in the corpus of the trust a small amount of cash and 310 shares of the capital stock of the American Telephone and Telegraph Company and a note asserted to be of no value. The account disclosed that the trustee had disbursed to the widow from the trust out of income from April 17, 1934, to August 11, 1937, the sum of $11,074.24 and, from the corpus of the trust, the sum of $1,900. In addition thereto she has not only been required to use all of her personal income, amounting to about $720 per year, but has also incurred unpaid obligations for her maintenance and care.
Certain of the remaindermen filed objections to the account and particularly to the propriety of the trustee paying over the $1,900 item out of the corpus of the estate for the benefit of the beneficiary. The learned Surrogate held that the testator provided for the payment to his widow of the entire income from the trust and so much of *160
the corpus as the trustee should, in its sole judgment, determine necessary for her every comfort and support and overruled the objections to the account. The Appellate Division reversed the Surrogate, sustained the objections to the expenditure from the principal of the trust, and directed that "the item of $1,900 advanced by the trustee from the principal of the trust and the commissions deducted or allowed thereon be disallowed and that the trustee forthwith reimburse the principal of the trust estate by that amount with interest from the dates of withdrawal." It found that the trustee paid out the item of principal without "having made adequate investigation as to the necessity for an invasion of the principal" (
The provisions of the will are not ambiguous, the intent of the testator is clear from the face of the instrument, and we may determine for ourselves what the instrument itself contains. Ascertainment of the intent of the testator as shown by his will, taken as a whole, is our primary purpose, and, when ascertained, is to prevail over all other canons of construction (Matter ofJames,
The widow of the testator is now seventy-eight years of age. For many years during the lifetime of the deceased he and his wife traveled extensively. Immediately upon his death Mrs. Clark became ill and she and her niece, Mrs. Marjorie Wells, went to California. Owing to the condition of her health, Mrs. Clark found it impracticable to return to her home in Baldwinsville until July 21, 1934. During *162 the period that she was in California she had medical attention and nursing and the constant care and attendance of her niece. Shortly after her return to Baldwinsville she became unable to manage herself or her affairs and has since been under the care of a physician and of nurses. Mrs. Wells, at her request, has lived with her and has had exclusive charge of the running of her home in which she lived and of the management of all of her business affairs. The brother of Mrs. Wells has also been with the widow at her special request and has acted as general caretaker around the large house which had been maintained by her husband in his lifetime. We may infer that this home was in the name of the husband and wife as tenants by the entirety. The brother took the place of a chauffeur who had been maintained as part of the establishment of the deceased. Additionally there was a woman employed three days per week at one dollar per day to assist in the heavy work. Mrs. Clark's condition became such that constant nursing attention day and night has been required. Mrs. Wells has received no pay for her services; the others were paid for their services and all received board and lodging. The estimate of the trust officer in charge of the trust as to the needs of the beneficiary was at least four thousand dollars per year. There is no evidence in the case to indicate that the expenditures which have been made for the beneficiary were either improvident or contrary to the provisions of the will.
Under the terms of the will the trustee could not delegate the duty of exercising its own judgment as to the amount to be expended for the every comfort and support of the widow (Matterof Wilkin,
The Surrogate authorized the trustee to sell the American Telephone and Telegraph stock. We understand that that provision of the decree means that it shall be sold only as *164 the trustee may deem such sales necessary from time to time to meet its obligations under the provisions of the will for the benefit of the widow.
The order of the Appellate Division should be modified in accordance with this opinion, and, as so modified, affirmed, with costs in this court and in the Appellate Division to all parties separately appearing and filing briefs, payable out of the estate.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur.
Ordered accordingly.