Shepard v. Gassner

The learned referee was requested to determine whether or not that part of the second clause of the will is valid, which purports to impress the property with a trust subsequent to the widow’s death and during the life of the daughter Josephine. He said that the question arose because of the fact that the will made no disposition whatever of the rents and profits of the estate during that period. He said that in a multitude of cases the courts have construed words and phrases to meet the general scope of a will, although the plain language may be quite contrary, standing alone, to the construction thus given. But he thought that in this case there was neither word nor phrase which the court could construe or from which it could construct a theory of intention. He thought, also, that it was altogether probable as the defendants claim that the omission referred to was clerical merely, but he regarded it as fatal and felt constrained to hold that the attempted creation of a trust during Josephine’s life failed in its object. This view does not seem to be justified by a proper interpretation of the second clause. The manifest intention of the testator to be gathered from the clause itself and justified by its language, is that his executors were1 to hold his estate during the lifetime of his daughter Josephine, in *330trust, for the uses expressly declared. The expression of this intention is not accomplished by- a union of those names, but by a separate statement as to each, the trust being to apply the rents, profits and income to his wife Rachel as long as she should remain liis widow, and upon the death of his wife and his daughter to sell and divide the proceeds of his estate among his children, then living, equally. But if his wife Rachel should intermarry, she was to receive, not the income of his estate, but an annuity of $200 only, and the executors were to apply the residue of the rents and profits to the use of his children then living. In other words he said: “ I wish my estate held during the lives of my wife and daughter and that my executors shall apply the rents and profits to the use of my wife as long as she shall remain unmarried, and upon her death and during the life of my daughter Josephine to apply them to the use of my children then living, and upon the death of both to sell and divide the proceeds of my estate among my children then living, equally.” This view is based upon the testator’s declaration that the trust shall extend during the life not only of his wife, but of his daughter Josephine. The provision as to the annuity of $200 in case of his wife’s remarriage was a partial abrogation of the trust, leaving a fund in excess which was to be distributed between the children, and as the trust was to continue, namely, to apply the rents, issues and profits, it may under such circumstances be fairly inferred that in case of the death of Rachel the same disposition was to be made of the income. It is not necessary to constitute a valid trust that it shall be stated in the precise words of the statute. It is sufficient if the intention to create it can be fairly collected from the instrument and what is implied by the lauguage used, as suggested by the learned counsel for the defendant. This view is sustained by the case of Morse v. Morse (85 N. Y., 53), in which case it was held that although there was no express direction in the will as to the disposition to be made of the rents and profits, nevertheless it would be implied that they were to go to the persons interested in the estate; and it was said that though the will did not expressly authorize the executor to receive the rents and profits, yet the power to rent and lease carried with it the power to receive the rents accruing from its execution. (See, also, Vernon v. Vernon, 53 N. Y., 353; Robert v. Corning, 89 id., 236.)

*331In Phillips v. Davies (92 N. Y., 199) it was lielcl that where, upon examination of a will taken as a whole, the intention of the testator appears clear, but its plain and definite purposes are endangered by inapt or inaccurate modes of expression, the court may and it is its duty to subordinate the language to the intention ; it may reject words and limitations, supply or transpose them to get at the correct meaning.

The case of Cooke v. Platt (98 N. Y., 35), which seems to be in conflict with these views, is not so, however, as appears upon examination ; because, in that case, there was no direction whatever to apply the rents and profits to the use of any person, for it was not the intention of the testator that the rents and profits should be distributable as such, but that they should be incorporated in the mass of the estate. Here the testator directs the application of the rents and profits during the life of the widow, and also in the event of her remarriage, and he undoubtedly intended that the application of the rents and profits should continue during the lifetime of his daughter Josephine, because the trust made is in connection with such distribution and evidently intended to be covered by it.

The discussion of this question might be extended ad libitum by a reference to the multitudinous adjudications bearing upon questions analogous and kindred. But it is considered that it would be entirely unnecessary, for if the intention of the testator can be ascertained from the instrument, on very well established principles, it must prevail. The rule is founded upon common sense, the doctrines of natural justice and the determination to dispose of the estate as the owner intended should be done. Any rule to the contrary by which the design of the testator in the disposition of his property is frustrated would be an antagonism to any one of those principles and could not be sustained.

Courts have no power, and it is trusted, have no disposition to make wills, and although m consequence of ambiguities arising from ignorance of the law of uses and trusts, and sometimes from infelicities of expression, they are called upon to construe and interpret wills, and may, in the exercise of that duty, mistake the intention of the testator, nevertheless it is the best that can be done under the circumstances in the administration of the law. Having *332arrived at tlie intention of tlie testator, and assuming the views expressed on that subject to be correct, the duty of the appellate court is performed.

The judgment should be reversed.

Judgment reversed.