1 N.Y.2d 103 | NY | 1956
Plaintiff, now 87 years of age, is a sister-in-law of Nellie Childs who died in 1946; defendants are the latter’s children who were named by her as executors in her last will and testament. It is a provision of that will, Paragraph Third, which now engages our attention; in it, Mrs. Childs declared:
“ I request my two children, Richard S. Childs and Mary Childs Draper, or the survivor of them, to pay to my sister-in-law, Mary Parker Spencer, now residing at Manchester, Connecticut, the sum of Two hundred and eight dollars and thirty-three cents ($208.33) per month as long as she shall live.”
Plaintiff, maintaining that the verb “ request,” read in context, is to be construed as a direction to pay her the sum specified, sues in contract (see, e.g., Redfield v. Redfield, 126 N. Y. 466; Brown v. Knapp, 79 N. Y. 136, 143; Gridley v.
Mrs. Childs executed her will in 1944, two years before her death. After providing for a number of legacies, including bequests to plaintiff’s two sons and to charity, she directed, in Paragraph Ninth, that the residue of her estate be equally divided between the two defendants. The estate consisted of over $2,500,000, the residuary estate, after taxes had been paid, of more than $1,000,000.
Plaintiff had married Mrs. Childs ’ brother in 1892 and, during their many years of marriage, Mrs. Childs had contributed to their support. In 1928, she made a will, providing for a trust of $100,000, the income — in the neighborhood of $208 a month — to be used for the support of her brother, and, if he predeceased plaintiff, then, for her support for life. After her brother died in 1932, Mrs. Childs gave plaintiff $208.33 a month, and these payments continued until March, 1945. In the meantime, she executed the will before us, which, as we have seen, contained the clause requesting defendants to pay plaintiff the very same sum each and every month as long as she lived. Following his mother’s decease, Richard, one of defendants, wrote plaintiff a letter, informing her of the will provision and advising that “ monthly checks ” would be sent “ about the first of each month ’ ’; and he added that she should ‘ ‘ always endorse the checks for deposit personally, as they will be part of our accounting to the court. ’ ’ The checks were sent for two years — until plaintiff was 79 years old — and then they stopped.
The present action, brought some years later, seeks to recover the amount which has assertedly accumulated. Defendants’ motion to dismiss the complaint for insufficiency was denied at Special Term and that decision was affirmed by the Appellate Division (283 App. Div. 788). Upon the trial thereafter held, there was a verdict for plaintiff, and, upon appeal, the Appellate Division affirmed, one justice dissenting.
Cases such as the present and Matter of Daly — also decided today (supra, p. 100) —well illustrate the aptness of Judge Learned Hand’s wise and trenchant observation that courts should be wary of making ‘ ‘ a fortress out of the dictionary ’ ’, since there “ is no more likely way to misapprehend the meaning of language * * * than to read the words literally, forget
One circumstance, indicative of a direction, is the degree of clarity and precision employed by the testator in describing the disposition in question — that is, the persons to take, the subject matter or amount of the gift, its terms and duration. (See, e.g., Colton v. Colton, 127 U. S. 300, 315; Matter of Bluestein, 302 N. Y. 760, affg. 277 App. Div. 385; Phillips v. Phillips, 112 N. Y. 197, 204; see, also, 2 Jarman on Wills [8th ed., 1951], pp. 866-867.) A like indication is furnished by the fact that the “request” is addressed to a close relative, for, it has been remarked, “ it would be but natural for the testator to suppose that a request, which, in its terms, implied no alternative * * * would be understood and obeyed as strictly as though it were couched in the language of direction and command. In such a case * * * ‘ the mode is only civility.’ ” (Colton v. Colton, supra, 127 U. S. 300, 319; see, also, Notes, 49 A. L. B. 31, 34; 107 A. L. B. 904.) And another signpost is found in the circumstance that the bequest, precatory in tone, precedes the clause disposing of the general or residuary estate out of which the gift is to come. (See Collister v. Fassitt, supra, 163 N. Y. 281, 287 et seq.)
In Phillips v. Phillips (supra, 112 N. Y. 197), a leading case, the testator, after providing that the whole of his property
Turning to the will under consideration, it is but necessary to observe that the suggested guides and signposts all point the conclusion, reached by the courts below, that the “ request ” reflected a direction.
In the first place, the ‘1 request ’ ’ is addressed to ‘ ‘ my two children ’ ’ — which their mother could expect would be understood and obeyed as strictly as if couched in language of command. In the second place, the amount of the gift is given to the penny and the other details are set forth in the most precise and explicit terms. By providing that her son and daughter (or, upon the death of one, the “ survivor ”) were to pay plaintiff $208.33 each and every month during her life, testatrix could not have been more definite or left less to their independent judgment. In the third place, the fact that the provision for plaintiff “ [stood] first in the will ” and that defendants were to receive the residue only after payments to plaintiff, manifested a design to charge such amounts to defendants. (Collister v. Fassitt, supra, 163 N. Y. 281, 287, 288-289.) And, in the fourth place, the further circumstances — the size of the estate left by testatrix, her children’s great wealth, in contrast to the comparatively small gift to plaintiff, as well as the testatrix’ long-continued practice of giving her $208.33 a month, the identical amount mentioned in the will — render it highly improbable that she intended defendants to be free to disregard the request and discontinue the monthly payments at their pleasure.
The judgment of the Appellate Division should be affirmed, with costs.
Desmond, Dye and Burke, JJ., concur with Fuld, J.; Van Voorhis, J., votes to reverse and to dismiss the complaint upon the ground that the words of the will on which plaintiff’s cause of action is based are precatory but not mandatory; Conway, Ch. J., and Froessel, J., taking no part.
Judgment affirmed.