57 N.Y.S. 452 | N.Y. App. Div. | 1899
This action was brought by a trustee for the construction of the-will of David Wakeman, deceased, who at the time of his death was a resident of Connecticut, and who by his will disposed of }3er-sonal property and real property, some situate in Connecticut and some in the State of Hew York. The testator left as his only heir at law and next of kin his daughter, Agnes Hawes. By the 2d clause of his will he gave to her “ the use and occupancy during her natural life of my farm situated in Southport in the town of Fairfield ” (Connecticut), “ including the mill on said property and the water right in Sasko creek adjoining.” By .the 3d clause he gave to his daughter all the personal property of every nature whatsoever situated on that farm. By the 4th clause he gave to his granddaughter, Mary Haw.es, the said farm, “including the mill and water right,” subject to the life use of her mother,. Agnes Hawes, He then proceeded to dispose of the residue of his estate as follows r
*550 “ 5ih. I give, devise and bequeath the rest and residue of all my property, both real and personal, and wherever situated, to Frank T. Staples, in trust for my grandchildren, Mary Hawes, David Henry Hawes and Isaac Plawes, my adopted son, Jesse Wake-man, and my daughter, Agnes Hawes, to be divided and distributed among them, share and share alike, on Dec. 1, 1910.
“ 6th. I direct my said trustee to pay the income of said trust property to said David Henry Hawes, Mary Hawes, Isaac Hawes, Jesse Wakeman and Agnes Hawes, semi-annually.”
The will was admitted to probate in Connecticut on the 3d of October, 1896. On the 10th of April, 1897, it was admitted to probate in the State of Hew York. The complaint sets forth that the testator died seized of real estate situate in the county of Hew York and in the county of Kings, in the State of Hew York, and that it is included in and forms part of the rest, residue and remainder of his estate. It is also alleged that the testamentary provision as to the rest, residue and remainder is valid and effectual in the State of Connecticut, but it is claimed that, as to the realty situate in Hew York, it is void by the law of Hew York; and judgment of the court is prayed as to the validity and effect, under the laws of Hew York, of the testamentary disposition of the rest, residue and remainder of the estate, so far as the same affects real property, of which the testator died seized, situate in Hew York. It appears that all of the defendants interested in the will, except Agnes Hawes and the executor, are infants, and the usual infants’ answers have been interposed by guardians ad litem. The defendant Agnes Hawes answered, and claims that the testamentary dispositions of the 5th and 6th clauses of the will are void, and that, she is entitled, as sole heir at law, to a fee simple in the real estate disposed of by those clauses, situate in the State of Hew York. It was decided at the Special Term that the 5th and 6th clauses of the will, so far as they relate to the real estate situate in Hew York, are void, as unlawfully suspending the power of alienation of that property. Among other things, the justice at Special Term found: “ That the said defendant Agnes Hawes now lives upon the farm mentioned in the second paragraph of the will of .the said David Wake-man, deceased, and has accepted the legacy mentioned in the third paragraph of said will, and has received from the plaintiff Frank
The first point presented for consideration is whether, by the terms of the will, the absolute power of alienation is suspended contrary to the terms of the statute. A period measured by years, and not by lives in being, during which there will be no person in existence by whom the absolute estate in possession can be conveyed, brings a devise within the rule against the unlawful suspension of the power of alienation. If authorities are needed for this proposition, they are abundant. (Phelps' Executor v. Pond, 23 N. Y. 69 ; Beekman v. Bonsor, Id. 306; Leonard v. Burr, 18 id. 107 ; Bascom v. Albertson, 34 id. 584; Cruikshank v. Home for the Friendless, 113 id. 337.)
The contention of the appellants is that, under a proper construction of this will, there is a gift directly to the persons, other than the plaintiff, named in the 5th clause of the will. The rule is invoked that that construction will be given which will support a will, rather than that which will defeat it, and that, therefore, the 5th and 6th clauses may be considered separately; and it is argued that so doing it would result in the otli clause merely providing for a passive trust, and in the 6tli clause containing a present gift spelled out from the direction to pay the income to the persons therein named, that being, it is claimed, equivalent to a gift of income which would carry with it the estate. But the real test of construction here, as in every other will, is the intention of the testator; and it would seem manifest that the 5th and 6tli clauses of the will must be construed together, and that as a consequence it was the undoubted intention of the testator to create an estate in the trustee upon which were limited remainders to the grandchildren and the adopted son. By the 5th clause the devise of the residuary estate is directly to Frank T. Staples in trust, to be divided and distributed share and share alike on December 1, 1910. By the 6th clause it is the
It is argued by the appellant, however, that the judgment is erroneous because the defendant Agnes Hawes, the heir at law, has made an election to take the specific devise and bequest to her contained in the 2d and 3d clauses of the will, and, therefore, the judgment declaring that the Hew York real estate is vested in her in fee simple cannot be sustained. We do not see how this question of election can properly be considered in this case. It is true the court below has found that the defendant Agnes Hawes now lives upon the farm mentioned in the 2d paragraph of the will, and that she has accepted the legacy mentioned in the 3d paragraph, and that she has also taken money from the trustee at different times under order of the court; but there is nothing found by the court, nor is there anything contained in the record, to indicate that those facts constitute a binding election, that is to say, one made with a full knowledge of rights or a full understanding of the relative values of properties. To make acts effectual as an election, the person alleged to have elected must have done them with knowledge of his rights and with the intention of electing. (Stratford v. Powell, 1 Ball & B. 1; Brown v. Brown, L. R. [2 Eq.] 481; Heron v. Hoffner, 3 Rawle, 396 ; O'Driscoll v. Koger, 2 Dessau [S. C.], 295 ; Pinckney v. Pinckney, 2 Rich. Eq. 218; Hall v. Hall, 2 McCord Ch. 269, 280 ; Adsit v. Adsit, 2 Johns. Ch. 448.) A binding election may be inferred from the retention by a legatee for a long time of what is taken under a will, but -whether what is done amounts to an election or not, must always be determined by the particular circumstances of each case; and there is nothing here from which, as matter of law, it can be ad judged that such an election was made by
If the whole estate of the testator were in the State of Hew York for adjustment and administration it might be that a person accepting a benefit under the will wonld be called upon to elect. Such cases are Hawley v. James (16 Wend. 61); Leonard v. Crommelin (1 Edw. Ch. 206); Thompson v. Carmichael's Executors (1 Sandf. Ch. 387); Chipman v. Montgomery (63 N. Y. 221). It was suggested on the argument that Chipman v. Montgomery was criticised by this court in the case of Steinway v. Steinway (24 App. Div. 104), wherein it was said that it was no longer a controlling authority. That was said, but not upon this point. In the Steinway case the question of election was not considered nor intended to be. The criticism of Chipman v. Montgomery therein made related only to the subject of jurisdiction and to the right of the next of kin taking a legacy under a will to maintain an action for the construction of a trust as to ptersonal property without surrendering what he had taken spe
The judgment should be affirmed, with costs.
Barrett and Rumsey, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., concurred in the conclusion that the trust is void.
Judgment affirmed, with costs.