204 A.D. 157 | N.Y. App. Div. | 1923
This action was brought to obtain a construction of the will of Eliza W. Durant, deceased, who died August 19, 1918, and who by her will executed May 9, 1918, devised and bequeathed her entire estate to her executor, the defendant, Roelif H. Brooks, as trustee, for the benefit of her son, John M. W. Durant, an adjudged incompetent, throughout his life, with remainder over upon his death to the infant defendants, John Brooks and Emily F. Brooks, children of the trustee. By the 4th paragraph of the will, the construction of which is involved in this action, the testatrix provided as follows: “ If the income from my estate shall be insufficient for the proper support of my said son, then and in that event, I authorize and empower my said Trustee to expend so much of the principal thereof as may be necessary for that purpose.”
The determination of this action turns upon the construction of the word “ necessary ” as used in the above quoted paragraph. The incompetent, the life beneficiary of the trust, had other means of support to be considered in more detail hereinafter. The contention of the plaintiff, the committee of the incompetent, is that the above clause of the will clearly indicates that it was the intention of the testatrix that her incompetent son should be supported and maintained solely out of her estate, and the court below has sus
The sole question is as to the intent of the testatrix, which must prevail. To ascertain the intention of the testatrix extraneous and parol proof is admissible, not “ to supply, contradict, enlarge or vary the written words ” (Brown v. Quintard, 177 N. Y. 75, 83), but to reveal “ the situation of the testator’s property at the time of his death, the condition of the beneficiaries and the circumstances surrounding the execution of the will ” (Furniss v. Cruikshank, 230 N. Y. 495, 501); “ to consider the surrounding circumstances that culminated in the testamentary act ” (Collister
For over two years prior to the execution of the will of the testatrix her incompetent son John had been a helpless bedridden paralytic and about one year prior thereto upon the petition of the testatrix, John had been adjudged mentally incompetent and the plaintiff had been appointed a committee of his person and estate. Under the will of his father, Allen B. Durant, which was admitted to probate in 1883, John, prior to his mother’s death, had received the income from one-half of his father’s estate under a trust for that purpose which had been administered by Charles I. Oliver acting under an appointment made in 1908 by the Supreme Court. When his mother died in 1918, John (1) was entitled under his father’s will to continue to receive throughout his life the income upon one-half of his father’s estate, which continued to be held in trust administered by Mr. Oliver; and (2) his brother George having died many years before, John became the absolute owner of the remaining one-half of his father’s estate, his mother having enjoyed the income therefrom during her life; and (3) John also became the sole beneficiary for life of the trust created by his mother’s will which is in question here. For convenience the trust under the will of John’s father, Allen B. Durant, administered by Mr. Oliver will be designated as fund A; the half interest in the father’s estate which by reason of the death of the brother George, has passed absolutely to John and is held by the plaintiff as John’s committee, will be designated as fund B; and the trust held by Mr. Brooks under Mrs. Durant’s will for John’s benefit, will be designated as fund C. Since his mother’s death John has had these three sources of income available for his support. The amount of principal of each of these funds is as follows: Fund A is $14,893.19; fund B is $13,749.86; fund C is $22,796.67. The income from fund A for several years last past has been quite
The testimony shows that the testatrix was thoroughly familiar with what constituted her own property and the value of it at the time of the execution of her will; that she knew that her son had been receiving an income from his father’s estate and knew that he would participate further under his father’s will when she died and the extent of that participation. It appears that she did not possess accurate knowledge as to the exact extent of that income. She had been living with her son alone except for his nurse and she had no other blood relatives. If she had any relatives by marriage, she had had no intimacy with them and apparently cared nothing for them. She had advised with her son’s physician regarding her business affairs and he had suggested that she see the minister of her church, the defendant Brooks, in relation to the drawing of her will. Apparently she did so and a firm of attorneys selected by her was called upon to draw her will. In several interviews she made known her knowledge as to her own property and as to the other source of her son’s income. She insisted that she had no relatives to whom she wished to give the corpus of her estate and that there were no charities in which she was interested sufficiently to give it to them. She had no interest in the committee of her son, and while not on unfriendly terms apparently with him, she had no desire to give her property directly to John to be administered by his committee, nor did she desire to have the committee act as a trustee under her will. She insisted upon the selection of the defendant, Roelif H. Brooks, as her trustee against his will; and also, against his protest and without his ultimate knowledge, the children of defendant Brooks were made the remaindermen to receive the corpus of her estate “ or so much thereof ” as might remain upon the death of her son. Considering all of these facts and circumstances we cannot believe
The judgment should be reversed upon the law and the facts, with costs in both courts to all parties filing separate briefs payable out of the estate besides such allowances as the Special Term may grant, and judgment should be directed in conformity with this opinion. The court disapproves of finding 11 of the findings of fact and disapproves of the refusal to find as requested in paragraph 16 of the requests submitted by the infant defendants.
H. T. Kellogg, Acting P. J., Kiley, Van Kiric and Hasbrouck, JJ., concur.
Judgment reversed upon the law and the facts, with costs to all parties filing separate briefs payable out of the estate, and judgment directed in accordance with the opinion. The court disapproves of finding 11 of the findings of fact, and disapproves of the refusal to find as requested in paragraph 16 of the requests submitted by the infant defendants. Further findings of fact in conformity with this opinion may be settled on notice.