198 Misc. 364 | N.Y. Sur. Ct. | 1950
The testator’s widow has instituted this proceeding for construction of his will, dated March 25,1949, which was admitted to probate by this court shortly after his death on April 27, 1949. Petitioner contends that the testator gave to her the sole right to determine how much of the trust funds the trustee shall advance to her periodically, and relies upon Matter of Woollard (295 N. Y. 390) as sustaining her claim. It appears that the estate is somewhat in excess of $40,000.
In brief outline, by his will the testator (paragraph “ Second ”) gave all his personal effects, including automobile, to his wife absolutely; (paragraph “ Third ”) gave his dwelling
Respondents not only dispute petitioner’s right to determine how much the trustee shall advance to her from the trust, but contend that Matter of Martin (269 N. Y. 305) controls, and that petitioner’s right to receive any principal from the trust depends upon her personal financial situation and her need.
Of course, petitioner is entitled to have all the income of the trust paid to her or expended for her use during her lifetime; and the question at issue relates only to the use of the corpus of the trust funds for the widow.
We shall first dispose of respondents’ contention that the widow’s rig’ht to use trust principal depends upon her other assets and income. I am of the opinion that the testator here did not condition the use of the principal upon the widow’s
The questions then arise as to how much of the trust principal shall be paid to or for the benefit of the widow periodically and who shall determine such sum. In the absence of contrary specification in the will, the care and maintenance referred to is construed to mean that to which the widow was accustomed while living with the testator. (Matter of Gabler, 261 N. Y. 517.) If the will does not designate who shall determine such sum to which the widow is entitled, it is a question of fact for judicial determination. (Matter of Martin, 269 N. Y. 305, 312-313, supra.) As in Matter of Martin (supra) clearly no power is given to the trustee herein to determine the amount to which the widow is entitled. Likewise, no power is granted to the widow-beneficiary to make such determination, unless it be contained in the last portion of subdivision “ a ” of paragraph “ Fourth ”, in the language “ it being my intention to provide amply for my said wife during her lifetime, and any request that she may make for any funds is to be honored by my executor and trustee.”
It is to be observed that the last-quoted words were not contained in the dispositive portion of the paragraph, but were added at the end thereof as an expression of general intention to aid in construing the earlier provisions. It must, therefore, be read in conjunction with such provisions. In my opinion testator’s said language may not be interpreted as authorizing petitioner to obtain funds from the trust for any purpose to suit her fancy, as might be the case in Matter of Woollard (295 N. Y. 390, supra), and Matter of Gillies (69 N. Y. S. 2d 803). 1 think that we must read into the last clause above-quoted a reference to the matter for which the use of the funds was authorized, and that it is to be read as follows: “ and any request that she may make for any such funds for her care, support and maintenance as herein provided and in accordance with her standard of living with me is to be honored by my executor and trustee.” That is the only reasonable construction of the subdivision read as a whole. Such construction is also more in harmony with paragraph “ Third ”, where testa
It may be observed, moreover, that the construction urged by petitioner would enable her in effect to destroy the trust. Although a testator may create a trust with authority in the beneficiary to terminate it by demanding and receiving the corpus thereof.from the trustee (Matter of Woollard, supra, and Matter of Gillies, supra), the court will not strain to find such authorization; and in the absence of clear expression by the testator of his intention that the beneficiary may “ call ” the trust corpus, such power will not be held to exist. (Vincent v. Rix, 248 N. Y. 76; Matter of Hadden, 178 Misc. 939.) A testator creates a trust for the protection of the life tenant as well as for the preservation of the corpus, or part thereof, for remaindermen; and I understand that this is the basis of the New York ruling that, in general, a testamentary trust is indestructible. (Matter of Wentworth, 230 N. Y. 176, 185.) In view of the size of the fund involved, to empower the widow in this instance to use the corpus of the trust at her own possible indiscretion might result in an early dissipation thereof and might leave her in a destitute condition. Testator’s wish that she be well cared for might thus be thwarted. Beading the will as a whole, it cannot be said that the testator meant to grant to his widow such discretion.
The petition upon which this application is based is broad enough to support a proceeding for the court to determine the amount to be paid to petitioner periodically under the trust herein, and the proceeding is continued for such purpose.
Submit decree accordingly.