72 N.Y.S. 968 | N.Y. App. Div. | 1901
The decisions of the courts of the State of testator’s domicile, as well as the decisions of the courts of this State, hold that the intention of the testator is the polar star to guide in the construction of wills, and that such intention is to be found in the language contained in the four corners of the will. (Collins v. Collins, 40 Ohio St, 353.) .And in its construction the intention of the testator as gathered from' the whole will must control when such intention is not in conflict With public policy (Carter v. Reddish, 32 Ohio St. 1), the settled rule of law (Thomas on Law of Estates Created by ‘ Will, vol. 2, 1645) or some prohibitive statute.
The two years’ period allowed to the executors under the' 21st clause of the will, in which they may hold the residuum for investment before division, is an' incident to the convenient settling of a large estate. (Robert v. Corning, 89 N. Y. 225.) The law of the domicile must prevail in the interpretation of wills (New York Life Ins. & Trust Co. v. Viele, 161 N. Y. 11), and the decree of the Court of Common Pleas of Hamilton county is binding upon the courts of this State. (Smith v. Central Trust Co., 154 N. Y. 333.) That court has held that the title to the property of Robert M. Shoemaker, deceased, vested in the legatees living at the testator’s death.
The important .question for this court to consider is whether John E. Putnam, as trustee for the benefit of his wife' and her children, took the title to one-fifth of the residue of the estate of testator, or whether the title thereto vested -in .Mary S. Putnam, leaving John E. Putnam merely a passive trustee without authority to do any effective act. In considering testamentary provisions the Ohio courts have gone even further than the courts of this State in upholding trusts for the benefit of remainder interests. In Johnson v. Johnson (51 Ohio St. 446) the will of testator provided : “I give and devise unto my beloved wife, Mary Ann A. Johnson,, and her assigns all the remainder of my property, both real and personal,
In Ide’s Executors v. Clark (5 Ohio Cir. 239) the mere words “ Should my wife die * * * I desire that her estate and mine be * * * divided equally among our several children,” following after an absolute gift to the wife, were held to create a trust. The court said: “ Controlling effect is due to the intention of the testator, and that intention must be gathered from the entire will. " Where from the entire scope of a will and all of its terms it appears that the testator intended to charge the estate in the hands of his immediate devisee with a trust in favor of others, the court will give effect to that intention whether the terms be in form dis-positive, peremptory or precatory only.”
In Boyd’s Lessee v. Talbert (12 Ohio, 212) the will contained an absolute devise to the wife, but in another clause were directions to the executors to lease, and, after paying taxes and ground rents, to pay the proceeds to the wife. It was held that the executors took the title charged with a trust in favor of the wife.
The head note in Greene v. Greene (38 Ohio Wkly. Law Bul. 205) is as follows: “A provision in a will by which the testator gives to his wife, her heirs and assigns, his whole estate to use, enjoy and dispose of as she shall deem best, any remainder thereof at her death to be divided between the children, share and share alike, gives a life estate to the widow only, without the power of testamentary
In Morse v. Morse (85 N. Y. 53) the court, in discussing what is necessary to a valid trust, say : “ It is not essential that the words ‘ trust ’ or trustee ’ should be used, or that there should be a direct devise in terms to the trustee, or that the authority to receive the rents and profits should be conferred in express language. It is sufficient if the intention to create a trust under the statute can be fairly collected from the instrument, and what is implied from the language used is, as in other instruments, deemed to be expressed. Nor will" the instrument necessarily fail as a trust, because the authority given could be executed by the creation of a mere power in trust.” (See Donovan v. Van De Mark, 78 N. Y. 244; Cass v. Cass, 15 App. Div. 235.)
In Howland v. Clendenin (134 N. Y. 305) .testator devised and bequeathed all of his property to his eight children, naming them, and to their respective heirs, executors, administrators and assigns forever, to be divided equally between them, share and share alike. it A subsequent provision of the will provided : “ And with regard to the portions of my daughters,, my will and direction are that my said executors, and the survivors and survivor of them be, and I hereby constitute them and him the trustees and trustee of the portions of my said daughters respectively, during their respective natural lives; and I hereby give and bequeath the same to my said executors and the survivors and survivor of them accordingly, in trust for my said daughters,. respectively. * * ” . Held, that while the language of the earlier provision of the will, standing alone, would have given an absolute estate to the daughters, the whole, read together, gave simply a life estate to each daughter,- and the portion of one dying without issue was not disposed of, but would go to the heirs at law and' next of kin of the testator.
In Felter v. Ackerson (35 App. Div. 282) the testator gave his residuary estate to his children, naming them, " To be divided equally between them, share and share alike.” By a subsequent provision of the will he directed that the shares to be given to two of the children named be held in trust for them, and that H. act as ., trustee of said property and pay over to said children the respective
By the 18th paragraph of the will now before us the testator named a trustee, John B. Putnam; the property to be held in trust —“ all moneys, rents and property of whatever kind under or by authority of this will advanced, paid to or devised to my daughter Mary; ” the purpose of the trust — “ for the benefit of my said daughter Mary and her children; ” the term of the trust — until “ the death of my said daughter; ” the remainder interests to take upon the termination of the trust—“her children including the lineal descendants of any. deceased child, taking per stirpes, share and share alike.” All the elements of a valid trust are in said paragraph stated. The intention of the testator to give to the children of his daughter Mary, his grandchildren, a remainder interest in what he calls “her share in my estate” is sufficiently plain to uphold the trust for the purpose of carrying out such intention of the testator.
The 17th paragraph of the will is as follows: “Seventeenth. I also hereby devise and will that all advances, devises, rents and bequests in this will made,-provided for or devised to my son Robert H., are and shall be held by him in trust only for the support and benefit of his wife and children including therein his lineal descendants, he, my son and his wife to have during their natural lives their support only out of said advances, devises, rents and bequests, and all income thereof to be so used, and in the maintenance and education of the children of my said son Robert H., and upon the death of said son and his wife, all of said devises and bequests shall pass to and become the property of his children, or the descendants of any deceased child, takin per stirpes, share and share alike.”
The intention of the testator in this paragraph to give the title to the share, which he refers to as “ provided for or devised to my son Robert H.,” to the trustee as therein stated, is not disputed by the appellants herein. Under the authorities of the State of Ohio, Robert H. Shoemaker, individually, did not have title to any part of his share in the estate. The meaning of the testator in the 21st paragraph of the will, directing in "regard to the division of his estate, where he uses
The decree expressly states that three-fifths of the residuary ' estate vested at the date of the death of the testator in the other three children, naming them, the words used being: “ The real
As we have already shown, the 17th and 18th paragraphs of the will give the title of the shares of testator’s estate therein mentioned to the trustees therein named respectively. Interlocutory judgment affirmed, with costs.
All concurred, except Parker, P. J., not voting.
Interlocutory judgment affirmed, with costs.