In re Wyatt's Estate

Special Surrogate. There is no connection, except in one particular, between the third and fifth paragraphs of this will. The latter becomes operative only after the complete enjoyment of the former, and our attention will be given to the questions submitted in the order in which the paragraphs appear in the will.

The reference counsel for the executors of Mrs. Wyatt makes to the fact that Mary J. Wyatt died within a year after the death of' testator, and that she had not at that time, or the time of her decease, reduced the corpus of this personal property to her possession,, will not be considered by me as affecting her rights in the least. Suppose the executors of testator’s estate had paid the whole fund of personal property to Mrs. Wyatt. I think testator’s executors, and the residuary legatees under his will, would have had a right to be heard upon the settlement of her estate; and a claim by them as to the part of his estate which his wife had not used for her comfort, maintenance, and support would have necessarily brought up this third paragraph of testator’s will for construction in that proceeding. Nor it is necessary at this time to consider the question raised as to the validity of this trust. If that point is urged, it seems to me that the case reported in 16 N. Y. Supp. 716 (In re Grant’s Estate, Sup.) is in point. There the will of testator gave his.

“Sec. 32. No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate * * * by disseisin, forfeiture, surrender, merger or otherwise.

“Sec. 33. The last preceding section shall not be construed to prevent an expectant estate from being defeated in any manner, or by any act or means, which the party creating such estate shall, in the creation thereof, have pro-

Tided for or authorized; nor shall an expectant estate, thus liable to be defeated, be on that ground adjudged void in its creation.”

It seems to me that the estate intended to be created here, after the life estate of testator’s widow, was a contingent future re-, mainder, and, under the above provisions of the Eevised Statutes, was such an estate as the testator had the right to create, and when the defeating contingency had been rendered impossible, to wit, the death of Mrs. Wyatt without having used any part of testator’s personal property for her comfort, maintenance, and support, then the remainder-men, representing the class mentioned in the fifth paragraph above, were entitled to possession. It seems to me that it was clearly the intention of the testator to limit the use of the corpus of his personal property to the actual needs of his wife, and all doubt as to this view not being his intention is overcome by the third clause of testator’s codicil, which is as follows:

“I give, devise, and bequeath to my dear wife, Mary Jane Wyatt, the sum of five hundred dollars ($500) absolutely, for herself, her heirs, and assigns, forever, in addition to what 1 give her by my said will.”

This leads us naturally to ask, what had testator given his wife by his will? Can there be any doubt as to what he supposed he had given her before this codicil was made, viz. the rents, issues, and income of all his estate, real and personal, for her natural life, with the right to use the whole or any part of his personal property, if she shall need it, for her comfort, maintenance, and support? If the testator had intended this bequest in his will to have been an absolute gift of all his personal property, what reason could he have had in attempting to give $500 more than his whole personal estate, and from what source would the $500 bequest in his codicil come? While it is true that the widow is the one to determine primarily whether she needs any part of the corpus of this estate for her comfort, maintenance, and support, yet I think that, where a husband leaves his estate in this manner,—practically under the control and enjoyment of his wife, if her necessities require it,— to entitle the wife to the use of any part of the corpus of testator’s personal property there must be something substantial in her needs; that the word “comfort” should not be construed to mean “luxury,” or the words “maintenance and support” coupled with any possibility of doubt but what the circumstances of the beneficiary are such that a part of the fund or corpus of the estate is needed for that purpose. Such interpretation should only be given as the words, in their ordinary meaning, imply,—the words “comfort, maintenance, and support” meaning, in each particular case, that degree of comfort, maintenance, or support which the testator in his lifetime bestowed upon his wife; and I think it incumbent on the part of the first beneficiary, whoever it may be, to show that the actual condition exists whereby the right to use, and thus lessen, the residuary estate may be exercised.

My conclusions, therefore, are that this testator gave his wife the use and income of his estate, real and personal, for her natural life, with the further right to use any part of his personal property, even to exhaustion, if she should need the same for her comfort, mainte

The portion of the fifth clause of testator’s will, upon which a construction is asked, is as follows:

“Fifth. On the death of my wife, I give, devise and bequeath all the personal property of which I may die seised, not hereinbefore given and bequeathed, and including such part of my personal property as my dear wife shall not have used up for her necessities, to the children of my deceased brothers and sisters and the children of my dear wife’s deceased sisters, equally, share and share alike, so that each one of our said nephews and nieces shall take an equal share. * * *”

The words, “including such part of my personal property as my dear wife shall not have used up for her necessities,” settle beyond a doubt the construction the testator placed upon the third paragraph of his will, and the estate he intended his wife to enjoy thereunder, and strengthen our belief in the construction of the third paragraph as above. It appears by the testimony that at the time testator made his will he was survived by two sisters, five sisters-in-law, and a large number of nephews and nieces, the children of two brothers and three sisters who were deceased. It also appears that there were other nephews and nieces, to wit, the children of testator’s two living sisters, and the children of four of the living sisters of testator’s wife; that the testator was well acquainted and on intimate terms with his living sisters and the sisters of his wife, and their families, respectively. It is contended on the part of the nephews and nieces of the living sisters of testator’s' wife that, inasmuch as the testator knew that all his wife’s sisters were living, the word “deceased,” in the sentence, “the children of my dear wife’s deceased sisters,” should be stricken out, as carrying a disposition contrary to the intention of testator, or., else transposed, and the sentence made to read, “the children of my dear [deceased] wife’s sisters;” and a like request is made that the word “deceased,” in the sentence, “to the children of my ’ deceased brothers and sisters,” be stricken out, or the words “and living” interposed, so that the sentence may read, “to the children of my deceased [and living] brothers and sisters.” The fact of making a will always raises a strong presumption against any wish of the testator to have his estate, or any part of it, enjoyed by those other than the ones named or included in a class mentioned and described in his will; and while it is the duty of the court to put such construction upon the various clauses of a will as will effectuate the general intent of the testator, and to that end transpose words and phrases, insert or leave out certain words or provisions if necessary, yet this can only be done in aid of the testator’s intent, and -not to make, in whole or in part, a new will. If the testator had intended to include all his nephews and nieces, and his wife’s nephews and nieces, in the class entitled to receive the residue of his personal property at the death of his wife, it seems to me that he would not have used the language he did, but would have prepared a simple sentence,

From a careful examination of all the bequests in testator’s will, it must be conceded that it was his intention to pass the enjoyment of his estate, after the death of his wife, to collaterals further removed than his own sisters or his wife’s sisters; and I think the general rule which has been declared in many cases—that where a legacy is given to a class of persons, distributable at a time subsequent to the death of the testator, all persons answering the description of the class at the time appointed for the distribution are deemed to be objects of the gift and entitled to a share—applies to this case. Teed v. Morton, 60 N. Y. 506 , and cases cited. And this rule applies whether the legacy, if to be enjoyed in the future, is vested or contingent. A testator may devote his gift to a whole class, or restrict it to certain individuals of a class; to persons of a class living at his death, or to such persons and all others who belong to the class at the period of distribution. In this case the period of distribution was upon the death of testator’s wife. I am therefore of the opinion that the intention of the testator, as expressed in this fifth paragraph of his will, is as follows: Upon the death of his said wife the residue of his personal property, including such part as his wife had not used for her necessities, was to be divided among the children of his deceased brothers and sisters (except such as are named as not en

Two items in the account of the executor of Charles W. Wyatt, ■deceased, were objected to by counsel for the executors of Mrs. Wyatt’s estate. The item of $21.82 for insurance upon the buildings on the real estate of testator, placed about four months before the death of Mrs. Wyatt, and the full premium for three years’ charges against her, is objected to, and it seems to me properly so. While it is true that testator’s wife had the benefit and use of this real estate for life, yet there is no reason for this life beneficiary paying, the premium for this insurance for the full period, unless she had lived to enjoy its protection, and the accounting executor should only charge the life beneficiary with a proportionate part of the amount of premium paid. The item of $25.75 paid by the accounting executor for the services of a trained nurse for testator’s wife, and charged by said «executor against her, I think, is properly charged. The .fourth paragraph of the will is, in part, as follows:

“Fourth. On the death of my dear wife, X give, devise, and bequeath the farm on which I now reside, consisting of about 18 acres of land, with * * *, to my nephew Albert O. Wyatt, provided he shall board, care for, ■and treat my dear wife as a son should treat a mother, caring for her comfort, and doing for her as she shall reasonably desire. * *

It appears from the testimony that the executor of Charles W. Wyatt’s estate, learning that Mrs. Wyatt was sick, called, and, although he found that everything was being done for her by this •devisee and nephew that he could do, yet the executor aforesaid believed that the experience of a trained nurse was needed; and he accordingly sent one to care for her, and by the services of this trained nurse she was benefited temporarily. While it is true that Mrs. Wyatt might have reasonably desired that this nephew obtain the services of a trained nurse, the testimony shows that it was the act of the executor of her husband’s estate, who had funds in his hands belonging to her; and I fail to see, under the terms of testator’s will, that it was incumbent on the part of this nephew to furnish a trained nurse, at least unless she had desired it. The request of the testator is that his nephew shall board, care for, and treat his wife “as a son should treat a mother.” The testator had no children, and he desired that his wife, after his decease, should have the care, protection, and attention which a son gives a mother; and surely it is not customary for a son to furnish a doctor or trained nurse for a ■parent in sickness, unless, probably, where the circumstances of the mother are such that she could not pay for such services,—a fact that did not exist in this case. The item of $25.75 will therefore be allowed as charged, and a decree entered in pursuance of the foregoing. Decreed accordingly.