In re the Estate of Weil

In this accounting proceeding Edgar Aronstein, a nephew of the decedent, in his own behalf and as assignee, has filed a claim against the estate in the sum of $54,569.12, with interest from March 5, 1921. The determination of the claim involves the construction of the will of testator’s father, Max Weil, and particularly the question of whether certain gifts to Simon R. Weil were forfeited by reason of his marriage to a person not of the Hebrew faith.

The widow died before the year 1900. Simon R. Weil died in 1923. He had received in his lifetime from his father’s estate the following amounts: (1) The net amount of the legacy of $50,000 given to him outright under paragraph 4; (2) $229,885.09, his share of the remainder given to him outright under paragraph 5; (3) the sum of $47,529.61, given to him as a remainderman under paragraph 5 from the trust fund which fell in upon the death of Louis J. Weil, his brother.

On March 5, 1921, Simon R. Weil married a person not of the Hebrew faith. The marriage took place after he had been paid all of the amounts recited above. Now over thirty years after the payment of the $50,000 legacy, over twenty years after the death of the mother, and several years after the receipt of the third fund by Simon R. Weil it is asserted that these various amounts must be repaid by his estate. The claimant, Aronstein, contends that by such marriage all of the funds paid to Simon R. Weil were forfeited. He contends further that under the provisions of paragraph 8 the gift over under that clause took effect and that dis

It will be noted that the gift to Simon R. Weil in the will of the $50,000 legacy and his interest in the remainder after the death of the widow and after the death of Louis J. Weil were absolute in form. Paragraph 5, having to do with the remainder interests, expressly gave him his share forever. It is well settled that a condition in general restraint of marriage is void and inoperative as against public policy. (Robinson v. Martin, 200 N. Y. 159 .) On the other hand, however, a clause in special restraint of marriage, such as prohibition of marriage to a person outside of a particular faith, or to a designated person, is in the ordinary course valid. (Matter of Seaman, 218 N. Y. 77 . See, also, discussion of cases in 2 Jarman Wills [6th Eng. ed.], 1526 et seq.; 2 Schouler Wills [6th ed.], 1502.) At the outset, we are to be bound by the 'oft-repeated maxim, that the general intention of the testator must be ascertained in order to interpret his will. In the words of Judge Andrews in Matter of Bump ( 234 N. Y. 60 , 63): “ In the construction of a will we seek the intent of the testator as exhibited by the words he has selected. Canons of construction may aid us. Based as they are upon general considerations; upon guesses as to what the average man would intend by this expression or by that, we rest upon them in the absence of more certain indications. Slight variations of phrase, however, or differences in arrangement may lead us to opposite results.”

In my opinion paragraph 8 of the will must be construed to apply only to the marriage of the children outside the faith whose shares were directed to be held in trust. As such, the clause of forfeiture would have no application to the share of Simon R. Weil. Analyzing the clause from a grammatical standpoint, the testator directed that “ if any one of my children shall marry a person of a different religious faith from mine ” he shall lose his share and interest in the estate. He then limited this general restriction by providing for the gift over as follows: “ I direct upon the ■ happening of such an event that the share given to or directed to be held in trust for such child shall be disposed of as if the said child had died.” It would appear that the words “ given to ” were modified by the subsequent words “ in trust.” The only reference

Under this construction, therefore, the right of Simon R. Weil to receive the proceeds of the legacy under paragraph 5 became absolute at the time of its payment over twenty-five years ago. Moreover, having married after his mother died, his right to receive the various shares of the remainders became free from any forfeiture at the date of the mother’s death. The law looks with disfavor upon the defeasance of an absolute bequest unless the will clearly establishes the intent by the testator to accomplish that result. (Graves v. Deterling, 120 N. Y. 447 .) It is also a familiar canon of ■ construction that where a share is given in one part of a will in terms which are clear and positive, such estate cannot be cut down by a subsequent clause of the will, the words of which are less clear. (Weber v. Kress, 198 App. Div. 687 ; Tillman v. Ogren, 227 N. Y. 495 .) We also find these recognized maxims applied in Matter of Wiley ( 188 N. Y. 579 ), decided upon the opinion of Mr. Justice Houghton in the Appellate Division ( 111 App. Div. 590 , 599), which contains the following language: “ The law favors the vesting of estates; and limitations over, and vesting subject to be divested, and postponing enjoyment of property, will not be imputed to a testator if it can be avoided. It is only where the testator has unequivocally expressed his intention to create these artificial estates that the courts will adjudge them to exist.”

The construction adopted here is more in accord with the practical ■situation that must have existed in the mind of the testator when he executed the will. As to those children whose shares were placed in trust and as to the remainder interest of all the children dependent upon the life estate of the widow, an effective preventive against a prohibited marriage was established. The interest in the funds

Since the marriage of Simon R. Weil took place after the death of the widow, there was no forfeiture of any of his interest in the estate. The claim is, therefore, dismissed.

Submit decree accordingly.