99 N.J. Eq. 498 | N.J. Ct. of Ch. | 1926
The single inquiry herein presented is whether by the provisions of her will testatrix intended to exercise the power of appointment which she enjoyed under the will of her father.
Nowhere in her will does testatrix make specific reference to the power. Standing alone, the instrument would be declared inoperative upon the trust estate. Farnum v. Pennsylvania Co.,
The only circumstance which may be said to militate against the conclusion that it was the plain intent of testatrix to exercise her power of appointment, is the fact that in the residuary clause of the will testatrix used the expression "my estate." In the special circumstances of this case that, to my mind cannot be said to overcome the views already expressed. The evidence discloses that only two days before the date of her will testatrix wrote to her trustee, saying: "Will you kindly tell me about the amount of my estate in your hands as trustee so that I can make disposal of it more intelligently in my will." It is clear that this letter and the testimony disclosing the custom of testatrix to refer to the trust fund as her estate cannot be received as evidence in aid of construction, except, at most, for carefully limited purposes and in special circumstances; but I am convinced that in the special circumstances of this case that letter and testimony cannot be wholly ignored. It will be noted that the general situation presented is one in which, through competent extrinsic evidence disclosing the property owned by testatrix and her power of appointment, it has been found that two estates existed from one or both of *501
which the bequests may have been intended to be paid — one the estate of testatrix, which was almost infinitesimal as compared with the amount of the legacies ordered paid — the other the ample trust estate of the father of testatrix, the income of which had long been paid to testatrix, and of which testatrix had the power of disposition by her will. By these parol proofs of surrounding circumstances a latent ambiguity was created as to whether the combined property, or only the meagre property of testatrix, was by her intended to discharge these legacies. This, to my mind, brings the case within the spirit of the general rule that declarations of a testator may be resorted to in case of a latent ambiguity which arises by reason of two or more persons or things, each answering exactly to the person or thing described in the will. Griscom v. Evans,
A decree will be advised in accordance with these views.