201 A.D. 826 | N.Y. App. Div. | 1922
Lead Opinion
Confining ourselves to a perusal of the will we think the testator intentionally or otherwise failed to devise his real estate except as to the use thereof by his wife during her widowhood and except also in the event of her remarriage. The language of the 2d paragraph of the will clearly permits no other inference and the will in its entirety discloses no disposition of the property except as aforesaid. In each of the authorities cited by the appellants to the contrary the will contained a different provision or somewhere therein considering the will in its entirety appeared one or more provisions reflecting the testamentary purpose.
We may assume without deciding the following contentions of the appellants: First, that the will on its face presents a doubt or ambiguity so that it should be construed in the light of extrinsic facts and circumstances; and second, that the letter of the testator to his wife twenty years after the execution of his will indicates
Having made the foregoing concessions to the appellants we encounter the difficulty that the letter cannot be considered as evidence of the testator’s intention. Sir James Wigr'am announced seven propositions as applicable to the construction of wills. The sixth and seventh of those propositions as set forth in Schouler on Wills (Yol. 1 [5th ed.], § 590), are as follows:
“ (VI.) Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator’s meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases, see VII.) will be void for uncertainty.
“ (VII.) Notwithstanding the rule of law which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator’s meaning, courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose.”
Schouler says in the above volume (§ 578): “ Moreover, provisions apparently conflicting which are contained in the will itself, repugnant parts, and whatever ambiguity may arise directly from the face of the instrument and the expressions, must be resolved, if at all, by construction, and not by external proof of, what was intended. Hence the declarations or instructions of the testator to the person who wrote the will must be excluded in this connection. The patent contradiction in terms of a will may sometimes be rendered harmless by a generous construction, but never by parol extraneous proof of what was intended.” Section 588: “ All tribunals agree, however, in aiding the will by extrinsic proof of facts and circumstances, and thereby resolving, if possible, whatever' must otherwise remain ambiguous or insensible as the written instrument stands. And one can well appreciate the good policy, if not the logic, of holding in check that bold," glaring sort of testimony which consists in rough drafts, instructions for a will, hearsay declarations of what the testator intended, the scrivener’s confessions, and the like, whose sure tendency is to prove too much, to set an oral will by the side of a written and executed one.” As indicated by the authorities there is a plain distinction between facts and circumstances sometimes permissible to aid in the construction of an ambiguous will and the declarations of the testator for that purpose. The latter are never received' in evidence except “ to make certain the person or thing intended,
None of the extrinsic facts or circumstances surrounding the execution of this will throw any particular light on the testator’s intention. Clearly the family understanding of the proper construction of the will cannot control the construction which should be placed thereon by the court. Nor do we find any element of estoppel arising from the fact that the plaintiff did not assert her rights in the administration of the personal estate. Every other interested party had the same knowledge and information which she possessed. She certainly did not mislead them. And her failure to insist on the distribution of the personalty as unbequeathed assets was not prejudicial but distinctly beneficial to her mother through' whom the appellants derive the claim they here assert.
We think the judgment should be affirmed, with costs.
All concur, except Van Kirií, J., dissenting, with a memorandum in which Kiley, J., concurs.
Dissenting Opinion
I have a strong feeling that Joseph B. Killip intended to give his wife the fee of his property, except in the one event that she should marry again. If the construction of the will be that she is not givem the fee, then, in the event that she does not marry, he has died absolutely intestate, except the provision for the use to his wife. The 3d clause of his will is a disposing clause in the event only that his wife marry again. He has made no disposition of his property at the death of his wife. Reading the 2d and 3d clauses of his will gives me this impression: that he intended to give the fee of all of his property to his wife, excepting in the one event that, if she married again, he would make another disposition of it, and this was his thought when he added the words “ to hold and use so long as she remains my widow,” and the one reason for adding those words. The 2d clause of his will, excepting the words “ to hold and use so long as she remains my widow,” is appropriate to give a fee, but he had in mind the fact that his wife might remarry. He had four small children. If she remarried, he meant to take care of these children; if she did not remarry, then he meant her to have the property and trust to her to look after the children. The words “ to hold, and use so long as she remains my widow ” were not added for the purpose of limiting the estate he had given her. The 3d clause, it seems to me, adds strength to this view, because in it be disposes of his property in the one
The authorities are plentiful that the court will not adopt a construction of a will which involves intestacy, except as a last resort.
The circumstances, the family and his property at the time the will was made in 1887, uphold this construction. At this time his real estate was mortgaged and his personal property insignificant. His oldest child was fifteen years of age and his youngest seven. The income of his property at that time could not possibly have supported these five persons, the sole object of his care and affection; and, excepting that she should marry again, and thus presumably have support from another, while his children would be without a father, he intended that the wife should have his property, and that she, not he, would dispose of it in the interest of the children.
In construing a contract the construction put upon it by the parties is considered most instructive in determining the intent at the time the contract was made. In construing a will this construction should not have the same force probably, but it is very significant that all the members of this family, who were in constant daily communication with the father and mother, should have for so many years accepted the interpretation above suggested; and that, in the Surrogate's Court, it has been adopted and the personal estate distributed and the transfer taxes assessed in harmony with it. The atmosphere and intimacies of the home
It does not seem necessary to me to hold that the words “ to hold and use so long as she remains my widow ” is a clause qualifying the preceding words, which are sufficient for an absolute fee; and, in connection with the next clause of the will as above suggested, it seems to me fairly plain that he did not intend thereby to destroy the former absolute gift and devise.
I think the devise and bequest created a defeasible fee simple in the widow, determinable on her remarriage only, and, in the absence of that event, her title remains absolute.
The judgment should be reversed.
Kiley, J., concurs.
Interlocutory judgment affirmed, with costa.