176 A.D. 637 | N.Y. App. Div. | 1917
Lead Opinion
The decree appealed from was made by the Surrogate’s Court, construing the will of Charles Frederick Fowles, deceased, in a proceeding under section 2615 of the Code of Civil Procedure. The decree so far as appealed from relates solely to the disposition of (1) a legacy of $5,000 and of certain personal property, and (2) one-half of a trust fund comprising forty-five per cent of the residuary estate. The appellants Gertrude Frances
“ Upon the death of my said wife, the said trust shall cease and determine and the corpus of same I direct my said trustees to then dispose of as follows:
The provisions “B” and “ 0 ” referred to are those providing for the payment of the second and third parts of the residuary estate, each consisting of twenty-seven and one-half per cent, to trustees for the benefit of the testator’s two daughters. By paragraph ninth the testator attempted to create a presumption to be binding upon the court in the event of his death and that of his wife under such circumstances that it should be difficult or impossible to determine which died first. This paragraph reads as follows:
“Ninth. In the event that my said wife and myself should die simultaneously or under such circumstances as to render it impossible or difficult to determine who predeceased the other, I hereby declare it to be my will that it shall be deemed that I shall have predeceased my said wife, and that this my W ill and any and all its provisions shall be construed on the assumption and basis that I shall have predeceased my said wife.”
The will of the testator’s wife, Frances May Fowles, contained a provision by which the testatrix attempted to exercise the power conferred upon her by her husband’s will in part as follows: “Any and all the rest, residue and remainder of my estate, real and personal and wheresoever situate (including any and all property as to which I may have power of disposition by will by virtue of the provisions of the last Will and Testament of my husband, Charles Frederick Fowles), I give and bequeath to my Trustees, hereinafter named, In Trust, Nevertheless, to hold and invest the same for the use and benefit of my sister, Dorothy Elizabeth Smith,” to receive and pay over the income to said Dorothy Elizabeth Smith during
Both wills were duly admitted to probate in New York county. It is conceded that no facts have come to light from which any inference can be drawn as to whether Mr. and Mrs. Fowles perished at the same moment or one predeceased the other, or as to the sequence of their deaths. The learned surrogate (95 Mise. Rep. 48) consequently, following the established rule in this State, correctly held that-there was no presumption that Mrs. Fowles survived her husband; also that as the power did not come into being until the death of Mr. Fowles, and could not be exercised until it did so come into being, and as the will of Mrs. Fowles could not be effective as an exercise of the power given by her husband’s will unless she did survive him, it followed that her will did not constitute an exercise of that power. The surrogate also correctly held that under well-settled principles of law and from considerations of public policy, the ninth paragraph of Mr. Fowles’ will could not be given effect, either as an attempt to change the substantive law applicable in the event of the simultaneous deaths of the testator and his wife, or as an attempt to create a presumption to bind the court in the absence of evidence as to which of the two died first, and that notwithstanding paragraph ninth the rule of law as to the effect of simultaneous deaths and the rule as to the presumption, in the absence of evidence as to priority of death, was the same as if paragraph ninth had not been contained in the will. Notwithstanding these rulings, the learned surrogate held that paragraph ninth of the will of Mr. Fowles, in order to prevent an assumed lapse and to carry out what the surrogate considered to be the intent of the testator, should be given effect as a “ substitutional ” provision, and should be construed as though it had provided that in the event of the simultaneous deaths of Mr. and Mrs. Fowles, or in the event of their deaths under such circumstances that the respective priority of their deaths
The underlying and basic grounds for the construction adopted by the learned surrogate, are the supposed intent of the testator, to be gathered from the instrument itself, and the assumption that this construction is necessary to avoid a lapse. For any intent on the part of Mr. Fowles that any part of his estate should go to his wife’s sister, Dorothy Elizabeth Smith, or to any child of his wife’s sister, the testament will be scanned in vain. A few simple words would have effectuated such an intention, but any such words are carefully omitted. The only possible wTay of finding any such in bent is to incorporate into the testator’s will the provisions of the wife’s will, which is contrary to the established rule in this State forbidding the incorporation into a will, by reference, of any extraneous instrument containing provisions of a testamentary character. {Booth v. Baptist Church, 126 N'. Y. 215, 247; Matler of O’Neil, 91 id. 516, 523; Matter of Emmons, 110 App. Div. 701.) But, says the learned surrogate, “In no event did he intend that these legacies should accrue by his will to his own next of kin. When this is certain beyond all peradventure, the court should
So far as concerns the assumption of a lapse or partial intestacy which this construction is adopted to avoid, there is no basis for it whatever. In the first place, the assumption of a lapse presupposes an intent on the part of the testator that a part of the corpus of the trust estate should go to Dorothy Elizabeth Smith, the wife’s sister, and there was no such intent expressed or intimated. The other basis for the assumption of a lapse or partial intestacy is that if the imaginary legacy to Dorothy Elizabeth Smith failed, such part of the trust fund would lapse into the residuary estate, but, as pointed out above,, the 8th paragraph of the will expressly provides that if Mrs. Fowles should fail to make testamentary disposition of the one-half of the trust fund (and she did fail, because she did not exercise the power conferred), this part of the trust fund passed to the testator’s trustees for the benefit of his two daughters. Clearly, therefore, the supposed lapse, to prevent which such an artificial construction has been given to the will, is non-existent.
The learned surrogate based his decision upon Matter of Piffard (111 1ST. T. 410), which was regarded as controlling and decisive. A careful consideration of the case will demonstrate that it affords no authority for the construction given
In a codicil the testator affirmed this bequest: “ I do hereby direct that my said daughters Sarah Eyre Piffard and Ann Matilda Piffard, named in my said will, shall have power, by their several wills heretofore or hereafter duly made and executed, to dispose of, devise and bequeath the share of my estate devised and bequeathed to them severally in and by my said will; and to that end I direct'that such share or shares shall be paid over by my said executors to the executors or trustees named in and by the several wills of my said daughters in case of the death of them, or either of them, in my lifetime, instead of to my said daughter or daughters; but if my said daughters shall survive me, then such shares shall be paid to them severally, as now provided in and by my said will.” Subsequently the daughter Sarah Piffard died and the testator, with knowledge of her death, reaffirmed his will by two further codicils. The Court of Appeals, admitting that the power conferred upon the daughter to dispose of the share of the estate bequeathed to her had failed, held that the bequest passed to her executors, as distinctly provided in the will. The court said, per Finch J.: “While, therefore, it may not be possible to sustain the power of appointment as such, and so enable Sarah’s devisees and legatees to take the one-fifth by force of her will, it is possible to see in the will of the father a
The differences between the Piffard case and the case at bar are fundamental. In the Piffard case the testator knew who would benefit under the daughter’s will because she predeceased him, and with such knowledge the testator thereafter by codicil reaffirmed his will. In the Piffard case but for the construction given the will intestacy would have resulted. This factor, as we have shown, is not present in the case at bar, for the testator provided for an alternative gift to the trustees for the benefit of his daughters upon the failure of the power. In the Piffard case the testator, in the event that his daughter predeceased him, made his bequest directly to her executors instead of to the daughter. In the case at bar the testator has not only provided against intestacy .but did not make his bequest to his wife, in the event of her death, in the alternative to her executors, but according to the provisions of her
Two other cases cited in the surrogate’s opinion to support his construction of this will are Young Women’s Christian Home v. French (187 U. S. 401) and St. John v. Andrews Institute (191 hi. Y. 254). In the first of these two cases the terms of the will showed clearly that the intent of the testatrix was to devise her property to the Young Women’s Christian Home, in the event of the contingency which actually occurred. The only difficulty presented was that through an obvious inadvertence, apparent upon the face of the will and in no way obscuring the intent of the testatrix, there was a failure to use the precise language which would meet the situation which actually occurred. In order to prevent a lapse the court construed the will as though the words thus inadvertently omitted had been contained in the will. The St. John case turned upon the validity of the testator’s gift to a charitable corporation to be created after the testator’s death under directions contained in his will, and did not involve the questions presented in the case at bar.
In' Condit v. Be Hart (62 H. J. Law, 78) a power of appointment was given the son by a first codicil to his father’s will. The son subsequently died first, leaving a will containing an attempted execution of the power. After the son’s death the father executed a second codicil in which he said of the power previously given the son by the first codicil, “ which codicil I do now, in all respects, ratify and confirm.” Respondents cite this case in support of the surrogate’s decision, but its force is destroyed by the fact that after the death of the son the testator reaffirmed his first codicil; also by the policy of
It seems to us, therefore, that the construction given to the will in the case at bar was unwarranted either in principle or by authority.
It is further contended that the two bequests of the twenty-two and óne-half per cent of the residuary estate to trustees for the testator’s two daughters and their issue in case Mrs. Fowles failed to make testamentary disposition thereof could become effective only on affirmative proof that Mrs. Fowles failed to make such testamentary disposition. In other words, it is claimed that the burden of proof is upon the daughters to show that Mrs. Fowles predeceased her husband. This contention is not well founded. By the will, as we have seen, the testator expressly provided that if the wife failed to exercise the power, the bequest should go to trustees for his two daughters. Under that provision of the will it was necessary for those claiming under the wife’s will to prove that the wife had exercised that power. In the absence of such proof the alternative provision in the testator’s will took effect. The appellants are not basing any claim upon the fact that the wife did or did not survive the testator. In the absence of any proof of the exercise of the power of appointment by the wife, the will of the testator itself disposed of the property, and the burden was on any person claiming under the exercise of the power to establish that the power was executed.
In so far as the validity of any devise of real estate in England is concerned, the law of England will govern, and, at least on this record, the courts of this State have no concern with it.
With respect to the specific legacy of $5,000 to the testator’s wife, and the personal property bequeathed by the fourth paragraph of the will, consisting of the personal property of the testator upon his English estate, these legacies, in default of any proof that Mrs. Fowles survived the testator, become a part of the residuary estate by operation ^ law.
The decree of the surrogate is, therefor^ versed, with costs to the appellants payable out of the estate, Wx h instructions to the Surrogate’s Court to enter a decree directing the executors
Clarke, P. J., Scott and Davis, JJ., concurred; Page, J., dissented.
Dissenting Opinion
I dissent. The “ninth” clause of the will of Charles Frederick Fowles is in my opinion neither an attempt by the testator to change the law applicable to deaths by common disaster by creating a presumption binding upon the courts, nor an attempt to incorporate into the will by reference the provisions of another will. The provision is merely a clearly expressed declaration of the testator’s intention with respect to the disposal of his property in the event named, which event has come to pass. The will states: “Ninth. In the event that my said wife and myself should die simultaneously or under such circumstances as to render it impossible or difficult to determine, who predeceased the other * * * it shall be deemed that I shall have predeceased my said wife.” In other words, the testator said, if my wife and I should die in a common disaster, and it cannot be determined which of us died first, I direct that my property he disposed of in the same manner in which the law would have disposed of it had I died first. He does not enjoin the courts to indulge in a presumption as to who died first. On the contrary, he recognizes that the courts could not legally adopt such a presumption, and requests them to indulge in a jfiction for the purpose of effectuating his intention with respect to his property. The creation of a fiction is not an uncommon method of testamentary expression. We frequently' find and give effect to such provisions as, for example, that a testator’s property be distributed in certain events and at a time long subsequent to his death as if he “ had then died intestate and without issue,” or provisions that a child of the testator shall in a certain event “he deemed to have survived ” him for the purpose of distributing his estate. To execute such directions we must assume a situation which is contrary to the actual facts and contrary to the result which would flow as a matter of law from the facts as they actually exist, and apply the law as if the fiction created by the testator
If it be deemed that the testator’s wife, Frances May Fowles, survived him, then her will, which in express terms purports to execute the power of appointment granted to her by the will of the testator, Charles Frederick Fowles, is a proper instrument in execution of the said power of appointment. The fact that at the time when her will was executed the power had not then vested in her is immaterial. (Hirsch v. BucJci, 162 App. Div. 659, 665, and authorities therein cited and discussed.)
Therefore, though I do not concur in the opinion of the learned surrogate of Hew York county, nor in the reasoning whereby he derived his result, I think the property which was subject to the appointment of Frances May Fowles by will should be transferred to the executors named in her will for distribution in accordance with her testamentary directions.
Decree reversed, with costs to appellants payable out of the estate, and decree ordered as stated in opinion. Order to be settled on notice.