121 N.E. 61 | NY | 1918
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *432 John McGuire died, leaving a last will and testament which was duly admitted to probate, which contained the following language:
"Item Sixth. I do hereby give and bequeath to my said Executor all of the personal property (of) which I may die possessed and which I may own at the time of my death in trust,however, and for the purposes of paying out and disposing of sameas I have advised and directed him to do."
This action is brought to impress such trust for the benefit of two of testator's next of kin, his sisters Bridget Reynolds and Mary Morris. The testator left other next of kin who are defendants herein. The courts below have sustained the contention of the plaintiffs upon the evidence of John Reynolds, the executor named in the will, that prior to the execution thereof, testator told him that the disposition he desired to make of his personal property was to give the same in equal shares to them, and that the will was executed on the promise of Reynolds to pay out the same in accordance with such directions.
The question is whether the testamentary provision thus made is valid. Wills must be executed in compliance with statutory formalities, and are not to be enlarged or diminished by reference to extrinsic testimony which may not be authentic. (Matter of Fowles,
The total failure to designate the beneficiaries of the trust in the will makes it to that extent an unwritten will, ineffectual for any purpose. (Decedent Estate Law [Cons. Laws, ch. 13], § 16.) The death of the executor prior to the establishment of the trust would leave the *433
court wholly without power to distribute the fund in accordance with testator's wishes. (Holland v. Alcock, supra; Fairchild
v. Edson,
The facts in Matter of O'Hara (
Fraud which justifies equitable interference is defined in theO'Hara case (p. 414) as "the attempt to take advantage of that which has been done in performance or upon the faith of the agreement while repudiating its obligation under cover of the statute." The alternative is the unjust enrichment of the fraudulent legatee, but fraud does not triumph when this trust is held inoperative. The law prevails over an attempt to defeat its salutary purposes. "Where the bequest is declared upon its face to be upon such trusts as the testator has otherwise signified to the devisee, it is equally clear that the devisee takes no beneficial interest; and, as between him and the beneficiaries intended, there is as much ground for establishing the trust as if the bequest to him were absolute on its face. But as betweenthe devisee and the heirs or next of kin, the case standsdifferently. They are *434
not excluded by the will itself. The will upon its face showing the devisee takes the legal title only and not the beneficial interest, and the trust not being sufficiently defined by the will to take effect, the equitable interest goes, by way of resulting trust, to the heirs or next of kin, as property of the deceased, not disposed of by his will. They cannot be deprived of that equitable interest, which accrues to them directly from the deceased, by any conduct of the devisee; nor by any intention ofthe deceased, unless signified in those forms which the law makesessential to every testamentary disposition. A trust not sufficiently declared on the face of the will cannot, therefore, be set up by extrinsic evidence to defeat the rights of the heirs at law or next of kin." (Olliffe v. Wells,
Cases may be found in other jurisdictions to sustain the position of the respondents (Matter of Fleetwood, L.R. 15 Ch. Div. 594, the authority of which is "somewhat reluctantly" recognized; Matter of Hetley, 1902, 2 Ch. 866; Jarman on Wills [6th ed.], p. 484; Curdy v. Berton,
A word may be added as to the effect of the adjudication of the surrogate who, with the parties before him and the issue joined, held that the sixth subdivision of the will was void and that, as to the personal property included therein, the testator died intestate. (Code Civ. Pro. § 2624, as it read prior to L. 1914, ch. 443.) The surrogate had no power to declare and enforce a secret trust created by will. He had power to determine without taking evidence the invalidity of this attempted disposition of property and his decree was conclusive on that point. (Matter ofKeleman,
The testator seems to have acted in entire good faith and the facts are to be taken as conclusively established, *436 but the privilege of making a will is dependent upon compliance with the statutory requirements.
The judgment should be reversed and the complaint dismissed, with costs in all courts.
HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, CARDOZO and ANDREWS, JJ., concur.
Judgment reversed, etc.