160 N.Y.S. 1034 | N.Y. Sur. Ct. | 1916
In this proceeding to settle judicially the accounts of executors it is necessary for the purpose of distribution to construe the following paragraphs of the will of testatrix: “ To my goddaughter, Helen Neilson Edmonds, I give $10,000 in trust * * “ My real estate and any remaining personal estate I leave to my nephew, Lynde Gatlin. In the event of his marriage or death at any time I give it in trust to my goddaughter, Helen Neilson Edmonds, and to .her sister, Catherine Livingston Reade Edmonds.” An earlier proceeding for construction was dismissed (89 Misc. Rep. 93), but with
It appears by stipulation and otherwise that testatrix, a spinster, when about sixty-eight years of age, prepared her own will. Her only next of kin and heir at law was her nephew, Lynde Oatlin, mentioned in the will. Helen Ueilson Edmonds, referred to in the will, was a cousin and goddaughter of testatrix and about five years of age when the will was executed. Catherine Livingston Reade Edmonds was a sister of Helen Ueilson Edmonds and she died 30th of September, 1908, or before testatrix. Letters testamentary were issued to Lynde Oatlin and Henry G. Sandford 18th of August, 1914, shortly after the death of testatrix. The will contains numerous general legacies to various societies and charities and to friends of the testatrix. One of the legacies is the sum of $10,000 given to “ The Christian Helpers Home of Brooklyn, U. Y.,” in memory of Catherine L. R. Oatlin, a sister of the deceased. The Christian Helpers Home has no existence, corporate or otherwise, now, nor did it have at the time of the death of the testatrix.
In aid of construction certain declarations of testatrix were offered in evidence over objections to which I shall hereafter allude, as the validity of such objections was reserved and is submitted to me for decision by the terms of the stipulation, which is a part of the record herein. Helen Ueilson Edmonds appears by her general guardian, who has filed objections to certain items paid for taxes as set forth in Schedule O-l. But as the main controversy in this proceeding relates to the construction of the will and not to such objections their consideration will be deferred until I proceed to construction.
The opposing contentions concerning construction are substantially as follows: Lynde Oatlin urges that the entire residuary estate belongs to him in fee and without qualification. He is not concerned in the pecuniary bequest of $10,000. Helen
The intention of the testatrix in stating that she gave $10,000 to Helen Eeilson Edmonds in trust is questioned by counsel. Certainly if testatrix intended to create a valid trust, permitted by our statutes, she did not employ the proper means. The nature of the contemplated trust, itself is not limited by the will and no trustee is mentioned. While it is true that the naming of a fiduciary is not essential to the creation of a trust, a valid trust cannot be created unless there is something to indicate that the testatrix contemplated one of the class of active trusts permitted by our statutes relating to trusts or powers. To read such an intention into the will demands an unwarranted interpolation. Probably the only limitations which the testatrix intended to impose were those associated with any gift to an infant. She probably believed that the infant’s guardian would hold this money in trust- during the infancy of Helen Eeilson Edmonds. The will, I conclude, must be construed to pass an absolute bequest of $10,000 to Helen Eeilson Edmonds, which the decree may provide should be paid over to her general guardian. I am led to the conclusion that no statutory trust or power in trust was created by several familiar principles, not alluded to by counsel probably because, so familiar. The principle is that to constitute a trust not charitable in nature there must always be a definite person, entitled to enforce the trust or power in trust in equity, and
If proof that testatrix unaided drafted her own will were necessary other than that contained in the stipulation, it is found in the clause last referred to above. The residuary clause also proves it even more emphatically and presents a marked instance of a difficulty occasioned by the attempt of the testatrix to draft her own will. A person more familiar with legal formulas or the law of estates, would not have drafted the limitations of estates or interests as she did. Some care would have been observed, certainly, in pointing out the duration of the estate which Lynde Gatlin was to enjoy. The various .parties in presenting their contentions seem to rely upon well-settled rules of construction. But in approaching a question of the intention of testatrix’s will it does not strike me as orderly to assort the various rules of construction and first to pick one which fits the aims of the clients. Rules of construction .are primarily and ultimately only aids for construing ascertained intentions. (Robinson v. Martin, 200 N. Y. 159.)
It is, no doubt, the rule that a will-drawn by a layman is to be construed much as a layman would construe it. (Overheiser v. Lackey, 207 N. Y. 229 ; Mee v. Cordon, 187 id. 400.) But I think that I correctly stated the proper boundary of this principle when I said that whenever a' testatrix resorts to tech
One of the most familiar old rules of the law of real property is that technical use of the term “ heirs ” is not necessary at common law to carry a fee to a devisee, but it is otherwise to carry a fee by a deed. This rule still applies to devises by the express terms of the Revised Statutes. But the rule would apply here without any legislation to that end. The word “ estate ” used simpliciter in a devise always implies, now as formerly, a fee simple or freehold estate. It is unnecessary to cite authorities for such a familiar principle. With this conclusion as a premise we may resort to the language of the will of testatrix: “ My real estate and any remaining personal estate , I leave to my nephew, Lynde Gatlin.” Had testatrix stopped there, no one could question that Lynde Gatlin took the estate of testatrix, or a freehold estate of inheritance in fee simple absolute. But testatrix did not stop there. She seems to have proceeded to qualify her donation by an additional distinct sentence, or, in other words, it is claimed that she resorted to the process known in law as “ cutting down.” Certainly the meaning of the modification so made by testatrix is not so clear as could be wished. Consequently, even in the case of a layman, we are driven to the application of the ordinary rule of law settling the quantum of an ambiguous limitation of this character. The rule I refer to is in substance that the quantum of estates, once given absolutely by the terms of a devise, will not be cut down by ambiguous or doubtful language following the absolute donation or gift. (Benson v. Corbin, 145 N. Y. 351, 359.) There are a hundred other familiar adjudications to the same effect. Applying this rule, my' conclusion is that Lynde Gatlin first
In reaching the foregoing conclusions no attention has been paid to the affidavit of Miss Marie L. Been, setting forth certain declarations of the testatrix. The stipulation already referred to, under which, the testimony of Mr. Sanford was given in the form of a deposition, provides also that the affidavit of Miss Marie L. Been, the companion of the testatrix, may be offered with the same force and effect as if she were testifying. Objection, however, has been taken and reserved to her testimony on the ground of its incompetency. The affidavit of Miss Been sets forth certain declarations of the testatrix made after she executed the will. The competency of these declarations is challenged. It seems that Miss Been, the affiant, was a companion of the testatrix for twelve years prior to the latter’s death, and she
The objection filed by the general guardian to the payment of personal taxes out of the principal is the only remaining question submitted. As an abstract proposition this objection has the support of reason and authority. There is nothing in the will to indicate that the general rule which compels an executor or trustee to pay annual taxes- out of income should not be observed if possible in this case. (Spencer v. Spencer, 169 App. Div. 54.) But in view of the accorded construction this particular conclusion, however, becomes immaterial here,
Decreed accordingly.