202 N.Y. 156 | NY | 1911
Lead Opinion
I concur in the opinion of my brother CULLEN, save in one respect. The courts below have held that the power of appointment given in the eleventh clause of the testatrix's will to Mrs. Wallace "to give, devise and bequeath upon her death by Last Will and Testament duly executed, to such of my heirs as she may prefer," may be exercised in favor of any issue or descendant of the testator. I can find no authority in the decided cases for the extension of the term "heir" to include issue or descendants who are not heirs. Not one of the authorities cited in support of that contention, in my opinion, sustains it. Before entering on a review of the cases the distinction must be borne in mind between two radically different propositions: First, that in the case of a devise to "heirs" upon the death of a life tenant, and especially in the case of a gift over upon death without heirs, the term "heirs" may be confined to such heirs as are issue or descendants; in other words, to heirs of the body. Second, the proposition which it is necessary to maintain to support the decisions below, that the term "heirs" may include all descendants, however remote, though not heirs because their parents or ancestors are still living. This second proposition, as I have *159
said, I can find no authority to sustain. Now, to refer to the cases cited by my brother. Matter of Cramer (
But I am of opinion that the heirs of the testatrix were to be ascertained not at her death, but at the death of the life tenant, to whom she gave the power of appointment. It should be conceded that the general rule is that a gift to a testator's heirs, though after the death of a life tenant, is a gift to those who were the testator's heirs at law at the time of his decease. But the will may disclose an intention that they are to be ascertained at a different period. In some of the cases cited as requiring a class to be ascertained at the death of the testator, the language is too plain to admit of discussion. InDelaney v. McCormack (
It must be borne in mind that in the case before us there is no present gift of the property, the subject of the eleventh clause, to the heirs of the testatrix. They take solely by the exercise of the power of appointment dependent entirely on the favor of the life tenant, who might give all to one and exclude the rest. It was not a gift to a class, but the designation of a class among which the life tenant was to exercise her favor. It is in this respect that I think the case before us is to be distinguished from an ordinary gift by the testatrix herself. There the class to be benefited would be known to the testator and take under the will as a recipient of the testator's bounty, Here, though it was not the life tenant's bounty, it was the life tenant's favor to which any appointee would be indebted for what he might get. That favor was to be exercised by the life tenant at her decease and it seems to me that the class was to be ascertained at the same time. But there is one further consideration which is, to my mind, controlling. It is true that the life tenant has no children, but she might have had children after the testatrix's death and, for aught we know, even after the present time. A construction of the will which would require the heirs of the testatrix to be ascertained at her death would preclude the life tenant from exercising the power of appointment over what may be not improperly termed her own share of her mother's estate in favor of her own children. Certainly, this testatrix never intended this.
I think the judgment of the Appellate Division and of *162 the Special Term should be further modified so as to hold that the power of appointment given in the eleventh clause of the will must be exercised in favor of the heirs of the testator; such heirs, however, to be ascertained at the death of the life tenant and donee of the power.
Dissenting Opinion
The action is to procure a judgment establishing the meaning of certain provisions of the will of Margaretta M. Diehl and settling the accounts of the plaintiffs. Upon the trial at Special Term, by an interlocutory judgment unanimously affirmed, the disputed parts of the will were given construction and the plaintiffs directed to account. The action thereupon proceeded to the final judgment appealed from.
The testatrix died in January, 1908, leaving surviving as her sole heirs at law and next of kin three sons, Charles W., Thomas and William, and three daughters, Margaretta Wetherill Wallance, Mary E. Smith and Susan D. Edson. The original will and the three codicils were probated April 13, 1908. They are without unusual or involved features, and a brief general statement of their contents will suffice. The original will by its second paragraph gave to Charles, in case he survived the testatrix, certain shares of corporate stock, and to the executors the sum of $10,000 in trust to purchase him an annuity. By its third paragraph it gave to Thomas, in case he survived her, all promissory notes belonging to the estate of her deceased husband under process of collection by him; also his indebtedness to her and to the executors $10,000 in trust to purchase an annuity for him. Each paragraph provided that if the son named therein did not survive the testatrix the bequests should form a part of the residue of the estate. The fourth paragraph devised to William certain lands in St. Paul, Minnesota. It was, however, revoked by a codicil which devised to him all properties in the state of Minnesota owned by the testatrix. *163 By the fifth paragraph testatrix gave to her daughter Mary E. Smith all of her diamonds and the sum of $500; and to her grandson, Edward I. Smith, certain paintings and engravings. The sixth and seventh paragraphs were revoked by the codicils. The eighth paragraph gave to the daughter Margaretta Wetherill Wallace a real estate mortgage of $5,000, and to the daughter Susan Douglas Edson real property known as No. 12 Clinton avenue, in the borough of Richmond, New York city. The ninth paragraph directed the executors to divide the rest and residue into two equal parts, with power to convert it into cash, one of which parts the tenth paragraph gave to her daughter, the appellant, Susan D. Edson, and the other was disposed of in the following language: "Eleventh. I give, devise and bequeath unto my daughter, Margaretta Wetherill Wallace, if living, the other part of my residuary estate during the term of her natural life, with power to collect and apply the income therefrom for her own use to invest and reinvest the principal according to her judgment, in real estate or in any other investment except railroad securities and with further power to give, devise and bequeath upon her death by Last Will and Testament duly executed, to such of my heirs as she may prefer." A question presented to us is, does the word "heirs" therein mean those who were the testatrix's legal or actual heirs, or those who are her descendants at the time the legatee exercises the power of appointment. The courts below have held that the legatee may effectively exercise the power of appointment for the benefit of any descendants of the testatrix.
The sixth paragraph of the will, revoked by a codicil, gave to the executors $5,000 in trust to establish a comfortable home for Marguerite Wetherill Buckwell, a granddaughter of testatrix. The first codicil revoked the sixth paragraph and gave the $5,000 to the executors in trust, to purchase an annuity for the said granddaughter. The second codicil contained the provision: "Whereas *164 circumstances may arise which may make the purchase of an annuity undesirable, it is my will that said sum of Five Thousand Dollars be paid to my said granddaughter Marguerite Wetherill Buckwell if she survive me, and I hereby give and bequeath such sum of Five Thousand Dollars to her, giving, however, my said executors power to apply said sum of Five Thousand Dollars to the purchase of an annuity in their discretion, for the benefit of my said granddaughter Marguerite in like manner as declared with respect to the proceeds of my property in Manhattan, Kansas, given my granddaughter Lilian." The granddaughter died April, 1907, leaving her surviving her daughter, Isabel Bingham Buckwell, her only heir at law and next of kin. The testatrix died, as stated, January 20, 1908. A question presented to us is, did this legacy lapse because of the death of the legatee prior to that of the testatrix. The courts below have held that it did not lapse and become a part of the residuary estate, but vested in Isabel Bingham Buckwell.
First. May Margaretta Wetherill Wallace exercise the power of appointment, given by the eleventh paragraph, for the benefit of any descendants of the testatrix? The answer is dictated by the intention of the testatrix. If she intended to confine Mrs. Wallace, in the exercise of the power, to a selection from those of her sons and daughters, her actual heirs, who were living when Mrs. Wallace made her last will and testament, the answer must be in the negative. A testamentary intention declared in a lawful manner and having a legal purpose cannot be thwarted or nullified. When it is declared in plain and unambiguous language, the meaning of which is not made questionable by the context, it must be given effect. A doubt as to the intention must spring from the will itself. When the doubt exists, the intention must be sought through a scrutiny and study of the provisions of the will and a consideration of the relevant and competent facts and circumstances; and while judicial rules *165 of construction may be called in aid, they may not frustrate the intention. Neither rules of construction nor the technical sense of words can prevail against the superior force of intention, the ascertainment and declaration of which is the whole province and duty of the court.
At the outset, therefore, the inquiry arises as to whether there arises from the language within the entire will a legitimate doubt as to the intention of the testatrix when she used the word "heirs." The word has various meanings. It has the primary and correct meaning of designating those on whom the law, immediately on the death of an owner of real estate, casts the estate therein. Under that meaning it relates only to real estate, and describes the persons appointed by law to succeed to it in cases of intestacy. That meaning the courts will give it without question, unless there is in the will itself language or disposition which suggests that the purpose in the mind of the testator is not thereby fulfilled. It has, however, popular or colloquial meanings and with sensitive flexibility yields easily and quickly from its primary, legal meaning in favor of an inconsistent or opposing intention. Applied to the succession of personal estate it means next of kin. (Tillman v. Davis,
Second. Did the legacy to Marguerite Wetherill Buckwell lapse by reason of her death prior to that of the testatrix? It is argued in the negative that the words "and I hereby give and bequeath such sum of Five Thousand Dollars to her" effect a gift or legacy, absolute and unaffected by the preceding words of the paragraph, upon the principle that when two clauses in a will are irreconcilable, so that they cannot possibly stand together, the one which is posterior in position shall be considered as indicating a subsequent intention, and prevail, unless the general scope of the will leads to a contrary conclusion; and, as a second step in the argument, the statute (2 R.S. 66, sect. 52) providing that whenever a testator gives a legacy to a child who dies during the lifetime of the testator leaving a child who survives the testator, the legacy shall not lapse, but shall vest in the surviving child, is invoked. This position cannot be maintained. The language of the codicil clearly and plainly expresses the intention that the bequest should become effective only in case the legatee survived the testatrix. The words above quoted are not a clause or a bequest independent of the words immediately preceding them.
There are not, within the principle invoked, two disposing clauses. The paragraph is free from contradictory or inconsistent parts and constitutes one disposition. So clear is this that it is enunciation rather than construction to say that the testatrix fearing that the direction to the executors to pay, in case Mrs. Buckwell survived, was not a complete testamentary giving, added the words quoted which were inoperative unless the payment, depending *169 upon the survivorship, was made. The five thousand dollars was not bequeathed to Mrs. Buckwell within the meaning of the statute (2 R.S. 66, section 52) which, therefore, has no application. The courts below erred in holding that the legacy did not lapse.
As to the other questions presented, we concur in the conclusions of the Appellate Division.
That part of the interlocutory and final judgments adjudging that the legacy of five thousand dollars bequeathed to Marguerite Wetherill Buckwell does not lapse and form a part of the residuary estate of Margaretta M. Diehl, but that said legacy vested in the surviving child of Marguerite Wetherill Buckwell, the defendant Isabel Bingham Buckwell, and that additional part of the final judgment adjudging that the plaintiffs pay to the guardian of the person and property of the defendant Isabel Bingham Buckwell, after security given, the sum of four thousand five hundred dollars, together with the interest or income on the sum of five thousand dollars from the thirteenth day of April, 1909, and that the plaintiffs pay to Frederick A. Drake, Esq., guardian ad litem for the infant defendant Isabel Bingham Buckwell the sum of five hundred dollars heretofore allowed to him as guardian ad litem out of the said Isabel Bingham Buckwell's share or portion of the estate should be reversed. In all other respects said judgments should be affirmed, with costs to the plaintiffs and to the respondent Lillian Purcell, to be paid out of the estate.
HAIGHT, VANN, WERNER and HISCOCK, JJ., concur with CULLEN, Ch. J.; GRAY, J., concurs with COLLIN, J.
Judgment of Appellate Division and that of Special Term modified, first, so that instead of declaring that the power of appointment given by the eleventh paragraph of the will of the testatrix may be effectually exercised for the benefit of any issue or descendants of Margaretta M. Diehl, it be adjudged and declared that it may be exercised for the benefit of any of the heirs of said Margaretta *170 M. Diehl, such heirs to be ascertained at the death of the donee of the power, Margaretta Wetherill Wallace; second, that instead of adjudging that the legacy of $5,000 bequeathed to Marguerite Wetherill Buckwell did not lapse, it be adjudged and declared that said legacy did lapse and fall into and become part of the residuary estate of Margaretta M. Diehl; and the direction that the legacy be paid to the guardian of the person and property of defendant Isabel Bingham Buckwell and Frederick A. Drake, guardian ad litem, is reversed; and as modified the said judgments are affirmed, with costs to all parties who have appeared and filed briefs in this court, payable out of the estate.