Delafield v. Shipman

In the construction of a will the .intention of a testator is the first and great object of inquiry, and to this technical rules, to a certain extent, are made subservient. (Per Church, Ch. J., in Hoppock et al. v. Tucker et al., 59 N. Y., 209.) The intention should be controling. (Kelso v. Iorillard, 85 N. Y., 177, per Miller, J.)

In the first clause of the will of Mr. Delafield recited, he ¿Erected the executors and trustees to pay the whole of his income to the maintenance of his wife and his children during her life in the same household. He imposed upon them the duty of providing during the life of his wife a furnished house as a home for her and the children, and of providing for the expense of keeping it so as to enable his family to live in the same manner as that to which they had been accustomed, the house and the keeping of it to be under the control and direction of his wife as its head, and after the accomplishment of that object, by the p#oper application of the income, then to pay over to his children and his wife an equal share of the residue thereof, each one of whom, out of the portion of such residue, was to defray individual personal expenses, such as for wearing apparel, traveling, etc. The ages of his children ranging from twenty-four to thirty-seven years, and being all adults, he doubtless entertained the impression that they might remain together and treated them as a class who were to receive equal consideration in the application of the income. He did not contemplate the intervention, in the application of the income of the estate as directed, of any other persons than those named.

The predominating idea evidently was the maintenance of a *518household such as he had provided during his existence for his wife and children, and in the same manner as to numbers, and. for no •other person or persons; his children alone, together with their mother, being the exclusive objects of his bounty in the use of the income of his estate, and he made this disposition of his income evidently contemplating the marriage of one or more of his children, because by the second clause recited he provides for that contingency upon the distribution of the whole of his estate after the death of his wife. And the difference between the disposition of the income, therefore, and the corpus of the estate seems to be conclusive evidence of his intention to make a distinction between the two, giving the former to his wife and children as a class, and to them only, and the latter to such of his children as were living upon the death of the mother, and the descendants of such as might have married and died leaving issue. If he had not intended to preserve this distinction, contemplating as he did the marriage of one or more of his children, it is quite clear that he would have made a proper disposition of the share of any child that might die leaving issue, by directing such share to be applied to the maintenance of his grandchild or children. Not having done so confirms the existence of the scheme in his mind of providing for a family mansion, under the roof of which his wife and children should be gathered during her life, and their union thus perpetuated, so far as it could be, through its instrumentality.

The elaborate briefs of the respective counsel engaged in the presentation of this case to this court have been duly considered and the cases referred to examined, but it is not deemed necessary to make any particular reference to them or to the principles enunciated by them. Search has been made in vain for a case presenting similar features to the one in hand, and although in a case of such interest as this it may be a source of regret, nevertheless having discovered with reasonable certainty and perhaps more than reasonable certainty the intention of the testator, which is the guiding star in controversies of this kind, there is no difficulty in pronouncing the ultimate judgment which should control in the distribution of the estate.

The views of the learned justice presiding in the court below, briefly and tersely expressed upon rendering judgment, are suffi *519eiently expressive of the proper result, and after due deliberation are adopted, therefore, as conclusive of the question presented.

Order affirmed.