In Re the Will of Fowles

*228 Cardozo, J. The will of Charles Frederick Fowles, made on April 29, 1915, is before us for construction. By the second article of the will he gave to his wife, Frances May Fowles, $5,000. By the fourth article he gave her the contents of his estate “ Fairmile Court.” By the eighth article he gave his residuary estate to trustees to divide into three parts, the first part to consist of forty-five per cent thereof, and each of the other parts to consist of twenty-seven and one-half per cent thereof. The income of the first part was to be paid to his wife during her life, and upon her death the trust was to cease and the corpus to be divided. Half of the corpus (22| per cent of the entire residue) was to be paid by the trustees “ pursuant to the provisions of such last will and testament as my said wife may leave (hereby conferring upon my said wife the power to dispose of the said one-half by last will and testament duly executed by her).” If she failed to execute the power, the corpus was to be held in trust for his daughters by a former wife, with remainder to their children. To them also were given upon like trusts, and with like remainders, the other shares of the residue. These provisions are not obscure, and their validity is not doubtful. The controversy grows out of the ninth article which reads as follows: “ In the event that my said wife and myself should die simultaneously or under such circumstances as to render it impossible or difficult to determine who predeceased the other, I hereby declare it to be my Will that it shall be deemed that I shall have predeceased my said wife, and that this my Will and any and all its provisions shall be construed on the assumption and basis that I shall have predeceased my said wife.” Husband and wife were lost at sea on May 7, 1915, with the steamship Lusitania. There is nothing to show which was the survivor. The wife left a will made at *229 the same time as the husband’s. She recites the power of appointment, and undertakes to execute it She gives her residuary estate (including the property affected by the power) to trustees for the use of a sister during life with remainder over. Whether this gift in its application to the husband’s estate is made valid and effective by the ninth article of his will is the chief question to be determined. Of his intention, there can be no doubt. In that, we all agree. He was about to set sail with his wife upon a perilous journey. He knew that disaster was possible. He knew that if death came, there would be no presumption to whom it had come first (Newell v. Nichols, 75 N. Y. 78; St. John v. Andrews Institute, 117 App. Div. 698; 191 N. Y. 254). He told the courts what he wished them to do if all other tests of truth should fail. They were to distribute his estate as they would if his wife Were the survivor. We cannot know whether she wás in truth the survivor or not: there is no break in the silence and obscurity of those last hours. The very situation which 'was foreseen has thus arisen. If intention is the key to the problem, the solution is not doubtful. We are now asked to hold that under the law of the state of New York, a testator may not lawfully declare that a power executed by one who dies under such conditions shall be valid to the same extent as if there were evidence of survivorship. Two rules of law are supposed to stand in the way. One is the rule that a power created by will lapses if the donee dies before the will takes effect. The other is the rule that wills must be executed in compliance with statutory formalities, and are not to be enlarged or diminished by reference to extrinsic documents which may not be authentic. A testator is not permitted at his pleasure to violate these rules. He does violate them, it is said, by indirection, if he may dispense with *230 evidence of survivorship and still sustain the gift which purports to execute the power. If the wife had survived a single second, the gift would certainly be valid. That would be so though she had signed her will while her husband was yet alive and before the power took effect (Stone v. Forbes, 189 Mass. 163, 168; Airey v. Bower, 12 A. C. 263; Hirsch v. Bucki, 162 App. Div. 659, 665). It is possible that she did survive, but it is also possible that she did not. The latter possibility, it is said, renders the gift void. We do not think it does. It is true that a power created by will lapses if the donee of the power dies before the maker of the will (Curley v. Lynch, 206 Mass. 289; Sugden on Powers [8th ed.], 460; Farwell on Powers [2d ed.], p. 226). That is because a will has no effect till the death of the testator. Whatever power it creates, comes into being at that time. But to say this, does not answer the question before us. The question is not whether this power of appointment lapsed. The question is whether the testator has avoided the consequences of a lapse. More concretely, it is whether the law permits him to provide that if the donee’s survivorship is incapable of proof, he will give his estate none the less to whomever she has named. That is what this testator said, not in words, but in effect. His will in this respect has a parallel in the one construed in Matter of Greenwood (1912, 1 Ch. Div. 392). There gifts were made to relatives, with the provision that if the legatees died leaving issue, the benefits of the gifts should not lapse, “ but should take effect as if his or her death had happened immediately after mine.” These words were held equivalent to a gift to the personal representatives of the legatees named. So here, there is by implication a gift to the legatees named by the wife, and a ratification of any execution of the power, however premature. The intent to avert the consequences of a lapse is clear. The only question is *231 whether the intent is one to which the law will give effect. One obstacle, and one only, can be thought of. That is the rule against the incorporation of extrinsic documents, testamentary in character but not themselves authenticated in accordance with the statute. It is said that this rule is violated when a testator, to keep a power alive, ratifies its execution, adopts the will which executes it as his own, and thus in effect averts a lapse. We do not share that view. Everything that this testator did is justified by our decision in Matter of Piffard (111 N. Y. 410, 414, 415). The distinction between that case and this is purely verbal. There is none in substance. In that case the testator authorized his daughter to dispose of a share of his estate by will. If she died before him, leaving a will in execution of the power, he directed his executors to transfer the share to her executors or trustees. We upheld the validity of that provision. We said that it might not be “ possible to sustain the power of appointment as such.” We held, however, that the daughter’s will might be referred to “ not as transferring the property by an appointment, but to define and make certain the persons to whom and the proportions in which the one-fifth should pass by the father’s will in case of the death of the daughter in his lifetime.” There was a like decision upon like facts in Condit v. De Hart (62 N. J. L. 78). The argument is made that the express direction to transfer the share to the daughter’s executors or trustees distinguishes the Piffard case from the one at bar. But in another form of words, this testator gave the same direction. He directed his executors to turn over his estate to the persons named by his wife. There is no distinction between a direction to pay the trustees named in another will, and a direction to pay the legatees named in a will. The daughter’s trustees in the Piffard case were not to take as individuals. They had no beneficial *232 interest. They were to take as trustees. Only by reference to the will which appointed them could the nature of the trust and the names and interests of the beneficiaries be learned. If there was a violation of the rule against incorporation here, there was equally a violation there. Piffard’s case cannot be distinguished. It ought not to be overruled. Only the clearest error would warrant us in baffling the just hopes and purposes of this testator by disregarding a decisive precedent. But there are substantial reasons to support the view that the decision was right. The reasons may appeal with different strength to different minds. For our present purposes, it is enough that they are at least substantial. The rule against incorporation has not been set aside. It has been kept within bounds which were believed to be wise and just. The rule is sometimes spoken of as if its content had been defined by statute, as if the prohibition were direct and express, and not inferential and implied. But the truth is that it is the product of judicial construction. Its form and limits are malleable and uncertain. We must shape them in the light of its origin and purpose. 'All that the statute says is that a will must be signed, published and attested in a certain way (Decedent Estate Law, § 21; Consol. Laws, ch. 13). From this the consequence is deduced that the testator’s purpose must be gathered from the will, and not from other documents which lack the prescribed marks of authenticity (Booth v. Baptist Church of Christ, 126 N. Y. 215, 247). It is a rule designed as a safeguard against fraud and mistake. In the nature of things, there must be exceptions to its apparent generality. Some reference to matters extrinsic is inevitable. Words are symbols, and we must compare them with things and persons and events (4 Wigmore on Ev. § 2470). It is a question of degree (Langdon v. Astor’s Executors, 16 N. Y. 9, 26, 31; Robert v. Corning, 89 N. Y. 225, 242). *233 Sometimes the distinction is said to be between documents which express the gift and documents which identify it (Hathaway v. Smith, 79 Conn. 519, 521; Booth v. Baptist Church of Christ, supra). But the two classes of cases run into each other by almost imperceptible gradations (Langdon v. Astor’s Executors, supra). One may ratify assumptions of power, extinguish debts, wipe out wrongs, confirm rights, by the directions of one’s will (Bizzey v. Flight, L. R. 3 Ch. Div. 269; 1 Jarman on Wills, 99). In these and other cases, the expressions of the gift and the description of its subject-matter must often coalesce. No general formula can tell us in advance where the line of division is to be drawn. It is plain, therefore, that we are not to press the rule against incorporation to “ a drily logical extreme ” (Noble State Bank v. Haskell, 219 U. S. 104, 110). We must look in each case to the substance. We must consider the reason of the rule, and the evils which it aims to remedy. ' But as soon as we apply that test, the problem solves itself. There is here no opportunity for fraud or mistake. There is no chance of foisting upon this testator a document which fails to declare his purpose. He has not limited his wife to any particular will. Once identify the document as her will; it then becomes his own. He authorizes her to act, and confirms her action (Condit v. De Hart, supra, at p. 81). For the purpose of the rule against incorporation, the substance of the situation is thus the same as it always is when a will creates a power. The substance is that a power which would otherwise have lapsed, has been kept alive by the declaration that its execution, however premature, is ratified and approved. But the execution of a power does not violate the rule against incorporation. It can make no difference for that purpose whether the execution is authorized in advance or made valid by relation. There is no greater impair *234 ment in the one ease than in the other of the principle of the integrity and completeness of testamentary expression. The source of title may be in one case the appointment, and in the other the confirmatory will. But if we go beneath the form and reach realities, the truth is that under the sanction of the will, a power has been executed. That is the principle which underlies the ruling in Matter of Piffard and Condit v. De Hart. We reaffirm it now. To hold that the purpose of this testator has been adequately or inadequately declared according to the accident of time at which death came to him or his wife in the depths of the ocean, is to follow the rule against incorporation with blind and literal adherence, forgetful of its origin, its purpose, and its true and deep significance. We have spoken thus far of the gift of the residuary estate under the eighth article of the will. Questions also arise under the second and fourth articles. The gifts under these articles did not lapse, but passed to the personal representatives of the legatee. On that subject it is impossible to add anything to what has been written by Judge Crane. The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed with costs in the Appellate Division and in this court to be paid out of the estate.