139 Misc. 496 | N.Y. Sur. Ct. | 1931
Decedent’s will was construed by this court on August 6,1930. (See Matter of Billings, 137 Misc. 758.) Thereafter the attorneys for the respective interested parties herein appeared in court to agree upon the form of the decree to be entered upon that decision. Counsel for Mae Taylor Higgins made an informal application to reopen the proceeding, pursuant to subdivision 6 of section 20 of the Surrogate’s Court Act, on the ground of newly-discovered evidence, which he believed competent and material upon the construction to be placed upon paragraph 6 of decedent’s will. The formality of the usual motion papers and moving affidavits was duly waived by counsel for the executor.
The basis for this application is as follows: It appears that two days prior to the time when decedent’s will was prepared by counsel
It is not disputed that the above paragraph was the basis for the preparation of paragraph 6 of decedent’s will by counsel for the executor herein. That paragraph reads as follows: “I give and bequeath to Mae Taylor Higgins all my deceased wife’s dresses and jewelry to be distributed by said Mae Taylor Higgins as she understood they were to be distributed by my wife.”
In construing paragraph 6, as above mentioned, I held that the words “ to be distributed by said Mae Taylor Higgins as she understood they were to be distributed by my wife ” were not precatory but mandatory; that they purported to create a trust; that as no beneficiaries were named, the trust was void and the property should become part of the residuary estate. (Matter of Billings, supra.) Assuming, as I must, that the allegations by counsel for petitioner relative to this matter will be substantiated by evidence if this application is granted, will such evidence be competent? If it is not competent, then this application should be denied, regardless of whether this court might place a different construction upon the language used by the testator in his original memorandum from that used in paragraph 6 of his will, for the first cannot be substituted for the latter, nor the latter construed in terms of the former, except pursuant to the rules of evidence that obtain in such cases. Briefly stated, counsel for petitioner proposes to show the intent of the testator as to the meaning of paragraph 6 of the will by offering in evidence a memorandum dictated by the testator two days prior to the execution of his will, covering the same subject-matter as mentioned in paragraph 6 of the will.
I had occasion in Matter of Milliette (123 Misc. 745, 750-753) to consider the matter of the admissibility of contemporaneous declarations of a testator relative to his intent in using the word “ heirs.” As therein stated, the only exceptions to the rule that
I do not believe that paragraph 6 of the will presents a patent ambiguity. By definition, a patent ambiguity is that which appears on the face of the instrument, and arises from the defective, obscure and insensible language used. (Black Law Dict.) Words cannot be said to be ambiguous unless their signification seems doubtful and uncertain to persons of competent skill and knowledge to understand them. (2 Story Cont. [4th ed.] 70, § 679.) A will is ambiguous only when after full consideration it is determined judicially that no interpretation can be given it. (Beale Rules Interp. 580,) The paragraph in question has been construed by this court and effect given to the testator’s intent in the light of the language used by him. The words “ to be distributed by said Mae Taylor Higgins as she understood they were to be distributed by my wife ” were held to negative the idea that Mae Taylor Higgins was to retain for herself the subject of the gift. The uncertainty that exists is not the meaning of the words used by the testator but the persons who are to be the beneficiaries of the attempted trust. A similar construction of similar words was held in Gross v. Moore (68 Hun, 412; affd., on opinion below, 141 N. Y. 559). I do not, therefore, believe that the paragraph in question presents a patent ambiguity. It is of interest to note that all of the cases cited by counsel for Mae Taylor Higgins as examples of patent ambiguities are in fact latent ambiguities. In Matter of Phipps (214 N. Y. 378, 381) evidence Was allowed to explain the meaning of “ homestead farm.” In Matter of Kavanagh (133 Misc. 399, 400) and in West v. West (215 App. Div. 285, 286) parol evidence was allowed to explain the meaning of “ personal property; ” and in Matter of White (219 App. Div. 502; affd., 245 N. Y. 587) such evidence was allowed to explain the meaning of “ dower.” Clearly, these cases are examples of latent ambiguities.
Is the proposed evidence admissible to rebut a resulting trust? This court has held that the language used in paragraph 6 manifested an intention, not to make a personal gift to Mae Taylor Higgins, but to create a trust for others. (Matter of Billings,
I believe, however, that the evidence sought to be admitted is proper for the purpose of rebutting the resulting trust heretofore held by this court to have been attempted to be created by the language used. The fact that the trust implied is held to be invalid for failure to designate the beneficiaries of the trust, does not, in my opinion, prevent the application of the rule that parol evidence is admissible to rebut a resulting trust. It would seem that if such parol evidence can be offered to rebut a resulting trust held to be valid, it should be allowed to rebut such a trust that is held to be invalid. In either case the purpose of allowing parol evidence to explain the language used would seem to be the same. An analysis of the cases cited by me as authority for my construction of paragraph 6 in my previous decision in this matter, indicates nothing to the contrary. In Reynolds v. Reynolds (224 N. Y. 429) parol evidence by the executor of the will as to the beneficiaries of the trust intended to be created was excluded. That was a case of an express trust, and not an implied trust. That case is, therefore, distinguishable from the present one, as parol evidence is never admissible to explain an imperfection or illegality of an express trust. (40 Cyc. 1429.) In Gross v. Moore (supra) the parol evidence offered was excluded as hearsay. In
I am also of the opinion that the proposed evidence is material. Without attempting to decide at this time what construction should be given to the alleged memorandum of testator for paragraph 6 of the will, it is sufficient to say that a construction different from that arrived at might easily be placed on paragraph 6 of the will. Prima facie the two clauses are not so nearly alike as to justify this court in saying that each should receive the same construction. This should be reserved for future decision.
In this connection a case which would seem to be authority for excluding said evidence is Dwight v. Fancher (245 N. Y. 71, 74). In that case the court said: " Parol evidence is not admissible to show that the testatrix did not mean what she has said in words, though these words may have been chosen by the attorney who drafted the will rather than by the testatrix. (Reynolds v. Robinson, 82 N. Y. 103.) ” It should be noted that in the above case and in the one therein cited there was no basis for the admission of parol evidence as in neither case was there a latent or patent ambiguity, or a resulting trust. For this reason the rule of construction therein mentioned is not applicable to the case at bar.
The application of petitioner is granted. Settle decision and prepare decree upon five days’ notice.