179 N.E. 755 | NY | 1932
Herman Rausch left a will dated November 25, 1927, whereby he gave one-fifth of his residuary estate "to the New York Trust Company of New York City, to be held by said Trust Company in trust for the benefit of my daughter Florence Skillings, under the same terms and conditions embodied in the Trust Agreement made between myself and the said New York Trust Company, dated April 15, 1922, the principal to be disposed of as contained in the said agreement, and which agreement is hereby made part of this my will, as if fully set forth herein."
The testator's daughter had been judicially declared to be a person of unsound mind and had been committed to an asylum. The trust agreement assigns to the trustee specified shares of stock to be applied to her support. It also states that by a will previously made the grantor has set apart for her use a sixth of his residuary estate, "to be held by the Trustee as an addition to and part of the trust estate hereby created, and the Trustee upon receiving such share of the grantor's residuary estate, shall administer it as a part hereof and as directed in this indenture." Provision is also made for the disposition of the interests in remainder when the trust is at an end. The only change effected by the will of 1927 is to make the share of the residue a fifth instead of a sixth.
The Surrogate held upon objections by the next of kin that the will was valid in all its parts. The Appellate Division reversed, and held that as to a fifth of the residuary estate there had been a violation of the rule forbidding the incorporation of unattested documents, and that the testator to that extent had died intestate. The case is now here upon appeal by the legatees affected.
At the execution of this will there was in existence a valid deed of trust whereby a trustee was under a duty to apply the subject-matter of the grant to uses there declared. All that the later will does is to give additional property to the same trustee to be held in the same way. *331 We are told by the decision below that this may not be done unless the terms of the deed of trust are repeated in the will.
The rule against incorporation, well established though it is, is one that will not be carried to "a drily logical extreme" (Matter of Fowles,
The books abound in nice distinctions. They are tests to guide the judgment rather than invariable rules or standards. The one most frequently drawn is between documents expressing the terms of the bequest and documents identifying the thing intended to be bequeathed (Hatheway v. Smith,
What has been written assumes that the question is still open in this State. We think the fact is that two cases, considered with great care, permit an answer to be given on the footing of authority.
No substantial distinction can be drawn between the situation in Matter of Piffard (
Matter of Fowles (supra) followed the decision in thePiffard case, though in a situation slightly different.
There are rulings to the same effect in New Jersey *334
(Condit v. DeHart,
A decision in Connecticut is cited for a different doctrine (Hatheway v. Smith,
The order of the Appellate Division should be reversed and that of the Surrogate's Court affirmed with costs in the Appellate Division and in this court payable out of the estate.
POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Ordered accordingly.