Durfee v. Pomeroy

Judgment affirmed on the opinion of Adams, J., delivered at Special Term, with costs and disbursements to respondents and appellant, payable out of the estate.

All concurred; except Adams, J., not sitting.

The following is the opinion of Adams, J., delivered at the Special Term:

The plaintiffs, who are the executors of the will in question, in their complaint allege that construction of that instrument, in sev-. eral important particulars, is necessary to the due and proper administration of the estate committed to their charge, but by consent of all parties the only question which is at present, submitted to the court for its adjudication is that which relates to the interest in such estate of the defendant Frances Pomeroy.

In order to clearly appreciate the attitude towards the estate which this defendant occupies it will be necessary to detail, with considerable particularity, the disposition which the testator has attempted to make of his property, and the conditions existing at the time of his death. He died leaving two children, a son and a daughter. The son, Rhea, was a young man of intemperate habits, and the defendant, who is his widow, was a domestic in the testator’s family;There is some reason to suppose that the son’s attachment for her was known to the father, but however this may be, it is a matter of minor consequence.

By the first clause of the will this son is given a life estate in the homestead, with remainder over to his sister, Eliza A. McIntyre, in the event of his dying without children. By the second clause certain specific personal property is given absolutely to the sou, and by' the third, or residuary clause, all the rest, residue and remainder of the testator’s estate, both real and personal, is devised and bequeathed to his executors in trust for the purposes thereinafter named. The trust thus created contemplates, among other things, the payment of

■Shoi-tly after his father’s death Rhea was inarried to the defendant, and soon thereafter, and prior to his arrival at the age of forty-five, he departed this life, leaving the defendant but no child or children him surviving. The widow, who has never remarried, now insists that by the terms of the will she is entitled to the income, during her life or widowhood, of one-quarter of the residuum of the estate, whatever that may prove to be; and it is the claim thus urged that raises the issue which, in its determination, seems to demand a legal construction of the will in question.

The first proposition suggested by a reading of this instrument is that it contains an attempted suspension of the power of alienation of a portion of the testator’s property beyond the period permitted by the statute.

In other words, that inasmuch as Rhea' did not marry until after the death of his father, there was a life possibly not in being at the time of the testator’s death, and that, consequently, such provision is repugnant to the Statute of Perpetuities, and, therefore, void.

Such, indeed, does seem to be' the law of this State. It is, perhaps, carrying the doctrine to an extreme limit, and it is a rule which will undoubtedly prove a harsh one in many cases, and per

Recognizing the fact that this court must of necessity be concluded in its determination of this question by the authority first cited, the defendant’s counsel insists that the will is capable of a construction which renders the law of that case inapplicable and suggests that the provision for the defendant be regarded as withdrawn from the trust and treated as an absolute legacy of the one-fourth part of the income of the testator’s estate.

This contention is presented most elaborately and with no little adroitness, certain words and phrases being ingeniously selected which, isolated from their context, would seem to warrant such a construction, and then counsel seeks to fortify his position with the further suggestion that the construction for which he contends would enable the court to regard the obvious intention of the testator. But while anxious to sustain rather than to invalidate every testamentary disposition of property where the intention of the testator is made clearly manifest, the, court cannot, even for the accomplishment of so desirable a result, do violence to certain well-established canons of construction, one of which is that when the general plan or scheme of a testator is ascertained, effect must be given to it, even at the sacrifice of a particular intention which is inconsistent with it. (See opinion of Sutherland, J., Lovett v. Kingsland, 44 Barb. 561 -567.) The first endeavor, therefore, must be to determine, if possible, upon what general plan or basis the testator designed the disposition of his estate. Fortunately, the language of his will, taken as a whole, leaves very little room for

It is true that in making provision for the possible contingency that his son would marry and then die' leaving a widow and no children, he uses this language : “ Then she (meaning the widow) is to have, and I devise and bequeath to her, one-lialf of the income of said half of the rest, residue and; remainder,” etc., but how can the meaning which is sought to be given to these words be made to harmonize with the primal idea that his trustees were to take control of all his residuary estate and which is expressed in the phrase. “ All the rest, residue and remainder of .my real and personal property and estate, of every name, kind and nature wheresoever situate * * . * I will, devise and bequeath to my executors hereinafter named,, and their successors, in trust, upon and unto the uses, purposes and trusts hereinafter named?” There are- no succeeding words which, in express terms, withdrew any portion of the residuum from the trust estate, and to imply any such intention upon the part of the testator would result in much confusion and lack of harmony, for in other parts of the will direction is made that from the net income of the estate $100 shall be expended annually in repairs to the homestead; that a monument, costing not to exceed $600, shall be erected and paid for out of the income of the whole' estate, and that the support and maintenance of one Euretta Miles, as well as her funeral expenses, shall be provided for from the same source.

If, then, the provision for the defendant is to be regarded as a - bequest of income, it is certainly subject to proper deductions for the purposes just specified, and these deductions must necessarily be made by some one other than the defendant. The mere statement of this proposition is sufficient, I think, to show quite conclusively that whatever interest the defendant might' have in the estate was ' inseparable from the trust, and if so, then it is impossible to give to the will the construction contended for.

The facts in the case of Griffen v. Ford ( 1 Bosw. 123 ) were quite different from those in the present case. There the testator directed his trustees to apply so much of the rents and profits of his estate as might be necessary towards the' support and maintenance of his wife as long as. she remained his widow, and it was held that this was in the nature of an annuity; that it did not effect a suspension of the power of alienation, because it was within the power of the trustees, or of the court to fix upon a specific sum to be set apart for the widow’s support, or it was within her power to accept a gross sum and release the estate. But such is not the case with this defendant for, as has already been shown, her interests in the estate could only be satisfied by transferring to her one-quarter of the net annual income of the estate during her widowhood, which may be equivalent to saying during her lifetime.

The case of Matteson v. Matteson ( 51 How. Pr. 216 ) is one in which it appears that the testator created no trust, but gave directly to his wife one-half of all the income of his real and personal estate, which, of course, amounts to nothing more than a charge upon the estate and does not suspend the power of alienation. This would be ample authority for the defendant if, as claimed, her interest in the testator’s estate were not affected by, and embraced in, the trust.

To epitomize the whole matter, I am persuaded that the will under consideration- must be construed to contain a trust which embraces the defendant’s interest in the estate; that such trust is

Further construction does not seem to be required by the exigencies of the case, and, therefore, judgment' is ordered in accordance with the views herein expressed,, with costs to both parties to be paid out of the estate.