126 N.Y. 73 | NY | 1891
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There was no issue before the surrogate to warrant the admission of the extrinsic parol evidence relating to the circumstances under which the first codicil was executed, and no jurisdiction in that officer to try the question sought to be raised by such evidence. The answer filed to the petition for probate made no question over that probate, and by its silence conceded the due execution of the will by a capable *78
testatrix, acting freely and without restraint. The issue tendered was that allowed by section 2624 of the Code of Civil Procedure, which permits on the probate of a will the determination by the surrogate of "the construction, validity and effect" of any disposition of personal property contained in it. That issue was the only one on trial, and the sole question raised of which the surrogate had jurisdiction was the construction and validity and consequent effect of the first codicil, and that involved merely the inquiry whether the bequest of the residue to Wandell was absolute or in trust, and if in trust, whether it was valid under the law of this state. That question rested upon the terms of the will itself, and had nothing whatever to do with an alleged extrinsic fraud against which equity might relieve in a proper case, and all the evidence pointing to that relief was inadmissible and totally immaterial. The General Term was evidently of that opinion, but, after expressing it, passed to some consideration of the evidence under a seeming impression that this court, in the case of O'Hara
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The evidence thus offered in the O'Hara case disclosed a secret and illegal trust, to effectuate which the absolute devise and bequest had been made. The contestants thereupon filed a complaint in equity, alleging all the facts, claiming that the devise and bequest in the hands of the legatees was the product of a fraud upon the testatrix, or upon the law, and seeking relief against that fraud. Of course, all the extrinsic facts became again admissible to establish the fraud alleged, and this court relieved against it by impressing a trust ex maleficio upon the property in the hands of the devisees and legatees for the benefit of the heirs and next of kin. In so doing, we did consider the parol and extrinsic evidence, but in an action in equity and upon an issue of fraud. And that again is something very far away from holding such evidence admissible in a Surrogate's Court upon a mere question of testamentary construction. Nothing of that sort was involved in the case or decided by it. *80
In the case at bar, therefore, the extrinsic evidence was not admissible upon the issue of construction, nor to establish a trust ex maleficio, which was wholly outside of and beyond the jurisdiction of the surrogate. And so we must come back to the real question involved; whether the will by its terms established any trust, and if so, whether that trust was valid.
We think it very clear that the bequest was absolute to the legatee and not upon any trust at all. The language of the codicil is as follows: "Doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modify said will dated February 18, 1889, by making my friend Townsend Wandell my residuary devisee and legatee and hereby request him to carry into effect my wishes with respect thereto, but this is not to be construed into an absolute direction on my part, but merely my desire." The will had made certain charitable bequests, but sure to fail if, as was probable and as happened, the deceased should not survive for two months after they were made, and that was the basis of the "doubts" expressed in the codicil.
It is very evident that the decedent did not intend to die intestate as to any part of her estate. By her will she devised and bequeathed any residue of her estate to one of the selected charities, and the purpose of the codicil was to carry that residue certainly and absolutely to Wandell, leaving him in that event to deal with the charities as he pleased.
It is true that the expression of a wish or a desire may sometimes serve to found a trust or effect a charge, but such expressions are by no means conclusive. We must still examine the will to discover the testamentary intention. (Phillips v.Phillips,
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.