130 Misc. 34 | N.Y. Sur. Ct. | 1927
In this accounting proceeding the question presented is as follows: Do the terms of the will, which provide for the reduction of the widow’s income in case she remarries, become effective if the widow remarries in fact, but her marriage is subsequently annulled as void ab initio by a court of competent jurisdiction? By the will of the testator the net income of the residuary trust was directed to be paid to his widow “ during her lifetime, or until such time as she shall remarry.” The will further directs that if the wife remarries the trustees are “ to pay to her the sum of Three Thousand Dollars per year from such net income, and to pay the balance of such net income to the charitable institutions described in subdivision 4 of this paragraph.” These nine certain charitable institutions are also named as remaindermen of the trust. The testator died in 1916. On July 5, 1924, the widow married one Clarence Edward Palmer at the British Consulate General at Naples, Italy. On February 7, 1927, the Probate, Divorce and Admiralty Division of the High Court of Justice of England, in an action for annulment of the marriage brought by Palmer against the widow of the decedent, made a decree adjudging “ the said marriage to be and to have been absolutely null and void and that the said petitioner was and is free from all Bond of Marriage with the said Bespondent,” because of the wife’s incapacity to consummate the marriage.
The question presented seems to be a novel one in this State. The research of counsel and the investigation of the authorities by the surrogate fail to disclose any precedent in the construction of a will where such an issue was determined. It might be contended, upon the construction of the will and the facts presented, that the testator intended to penalize his widow by a reduction in her income from the estate for the mere act of marrying. On this theory it may be asserted that he was concerned entirely with providing ample support for herself only and that he intended that her second husband should gain no benefit, temporary or permanent, from his estate. On the other hand, an alternative interpretation (which the surrogate has adopted as the proper construction of the will) presents itself as to the legal effect of the term “ remarry ” as used by the testator and as construed in the light of the decree of the court which pronounced the marriage void ab initio. Under the circumstances of this case I hold that the decree of annulment which rendered the marriage absolutely null and void in no way prevented the widow from receiving the full and undiminished income of the trust and that the widow is not limited, under the terms of the will, to receive the reduced allowance of S3,000 which the testator provided for on a condition which never occurred in
I hold, therefore, that the widow is entitled to the full undiminished income of the trust and that the provision for a limitation of her income in case of her remarriage never became effective.
Submit decree on notice construing the will and settling the account accordingly.