117 Misc. 498 | N.Y. Sur. Ct. | 1921
Upon this final accounting, the will of the decedent, which was admitted to probate February 4, 1918, must be construed. We are to deal with the testator’s intention with regard to the gift to his children. The personal estate will amount to less than $50,000 and is largely insufficient to pay the general legacies. There is no real estate. Shall the rigid rule of the law be supplanted with principles and doctrines that govern human conditions? Shall the general legacies abate, or is the gift to the children to be preferred? The general legacies are as follows: $10,000 to one Margaret Spitz, a friend of the decedent; $10,000 to a brother of the decedent; $50,000 in trust for the life of the mother of the decedent, Myra J. Neil; $50,000 in trust for the three infant children of the decedent, in these words: “Fourth,. I give, devise and bequeath unto my executors the sum of Fifty thousand ($50,000) dollars in trust never-the-
The children are of tender age. In 1918, they were aged eight years, thirteen years and fifteen years, respectively. They contend by their special guardian that the trust legacy for their ‘‘ use and education ’ ’ is preferred. Myra J. Neil, the mother, contends for a pro rata leveling of all general legacies.
The rule with regard to bequests made in form of a general legacy and of pure bounty, where there is no expression, or inference to be drawn therefrom, manifesting an intention to make a preferred gift, is that, in the event of a deficiency to pay in full, they shall abate ratably. However, under some circumstances, the courts have found an intention to prefer, without express words on the part of the testator. The leading and foundation case establishing this construction is Lewin v. Lewin, 2 Ves. Sen. 415 (1752). Lord Chancellor Hardwick says: “ The gift was for maintenance.” A preference was held for the wife and children unprovided for. “It is not suggested that the wife and children have any other provision, ’ ’ and that when “ there is no provision by settlement, or otherwise, under which his wife, or children could claim, it' is natural for him in making the disposition to place them in the first place.” In our state the rule established in Lewin v. Lewin, supra, has been followed. It has been held that legacies for the support and main
What is meant by “ otherwise provided for?” In several of the cases, the will did otherwise provide for the legatee. None of the cases, however, considered what was meant by - ‘ otherwise provided for.” Neither did they discuss or decide the sufficiency of any provision otherwise made. Upon a reading of the foundation case, Lewin v. Lewin, supra, I am of the opinion that “ otherwise provided for ” means otherwise provided for in the will, or by the terms of some settlement made by the decedent.
And, I am convinced that “ otherwise provided for ” means a provision for support and maintenance, adequate and reasonable. A legatee may be otherwise provided for in a stinted measure, and if it is insufficient and unreasonable for proper support and maintenance, he is not truly provided for. I feel that the principle of the canon of construction should be, if the decedent does not sufficiently provide for his children in another instrument, or otherwise in the will, an intention will be presumed, that he designed to give them the amount of the legacy specified in the will, even though the estate is insufficient to pay the general legacies.
There was offered in evidence an agreement of settlement dated June 17, *1916, made between the decedent and his wife, wherein a trust company in New Jersey was named as trustee. It recites that disputes have arisen between the decedent and his wife; his desire to provide for the support and maintenance of the wife and children; sets up a fund of $25,000 with certain real property to provide for an annual sum of $2,500 for such support and maintenance for the natural life of the wife; the right to occupy a certain
Objection was made to the reception of this instrument in evidence and decision thereon was withheld. I now decide that said instrument may be admitted in evidence and the record has been amended to so indicate.
Claims for preferential payment of general legacies are founded upon a consideration, as when a legacy is given to a wife in lieu of dower, or when a legacy is made for the support, maintenance, or education of children, because the law fastens upon a father the legal obligation to support, maintain and educate his children, despite the fact that a provision for their
It will be recalled that in the separation agreement, the trust is for the “ support and maintenance ” of the wife and the children, while the trust in the will is for the “ use and education ” of the children. While “ use ” is broad enough to cover support and maintenance, we must give effect to the gift in trust for the education of the children. In Petrie v. Petrie, supra, it was held that a legacy for education, like one for maintenance, must be preferred to general legacies, and I assume, if other provision is not made for such purpose. ' As to the trust for the education of the children, it cannot be argued that the prior settlement made any provision in this regard. Webster says, support and maintenance are synonymous, and to support and maintain a person is to give means of livelihood to him. It implies existence and the continuance of "bodily life, and provides for bodily care. One may be supported and maintained, but not educated. Education is instruction and is not necessary for physical existence, and to require one to support and maintain a person does not require one to educate him. It is significant that the will was made July 6, 1916, nineteen days after the making of the settlement agreement. The will recites the agreement in part. By its very terms, it shows every evidence of the testator’s great desire and intent to provide for his children. It
The testimony adduced on the hearing also indicates
As the trust deed does not provide for the education of these children of tender years, we must say that, so far as education is concerned, they are not otherwise provided for.
I hold that this legacy has a preference for two reasons: First, That while the law is, that if a legatee is otherwise provided for the legacy will abate, but that in the instant case the “ other provision ” is not sufficient, nor reasonable, and consequently, they are not provided for. Therefore, the gift in the will for their use should be preferred. Second, The deed of settlement does not provide for their education, and because of that, it can be held that they are not “ otherwise provided for,” either in the will, or by the terms of any settlement, for the purpose of education and the trust for that purpose should be preferred.
Dean Pound in his work on “ Mechanical Jurisprudence,” says: “We need a movement for the adjustment of principles and doctrines to the human conditions they are to govern rather than to first principles; for putting the human factor in the central place.” Nowhere is this more true than when we are dealing with the relation existing between parent and child. No place more necessary where human conditions should govern, and putting the human factor in the central place, than in the instant case.
“ It is in weighing and balancing these interests that the discretionary element must enter. It is clear that rules must be abandoned and resort must be had to the fundamental interests that lie behind them. Judges must have regard for the human conditions they are to govern. This statement represents a distinctly new spirit in judicial method, the spirit which will refuse to uphold abstract categories and formal deductions
It. is simply an evidence of the spirit of the times in the consideration and determination of individual and social interests. It is the conviction of the court that these days, in judicial decisions, human elements must enter and human conditions are to govern to a degree, that ‘ ‘ rights and duties in systems of living law ’ ’ to some extent must prevail as against century aged set rules.
Let decree be entered upon the accounting holding a preference for the general legacy of $50,000 in favor of the children of the decedent.
Decreed accordingly.