Weeks v. . Cornwell

Earl, J. This appeal imposes upon us the difficult duty of construing the twenty-fourth and twenty-fifth clauses of this will. These clauses were drawn with great unskillfulness and carelessness, and thus their meaning is very obscure and uncertain. As they concern and attempt to dispose of a very large amount of property, they must have been the subject of some deliberation, and the testator evidently had some meaning which is embodied, however inaptly, in the language used. What that meaning is, it is for us to ascertain, if we can. If it is unaseertainable, the case is the same as if no attempt had been made to express any, and the language used can have no effect. If several meanings may be attributed to the language, each supported by equally strong reasons and probabilities, no one of them can be accepted, as that which the testator meant to express. Important rights cannot be based upon mere conjecture. But, in the construction of wills as in the determination of questions of fact, and other questions of law, it is not to be expected that absolute certainty can always be attained. Upon questions of fact it is sufficient that there is a balance of evidence or probabilities in favor of one side or the other of the dispute, and upon such balance courts will rely in deciding the weightiest issues. So in the construction of written instruments, courts will scrutinize the language used, and however confused, uncertain and involved it may be, will give it that construction which has in its favor the balance of reasons and probabilities, and will act *337 upon that. The intent of a testator may sometimes be missed, but such is the infirmity of language and human judgment that such a result is sometimes unavoidable. As said in Jarman on Wills (Vol. 1, p. 643): “In the construction of wills, the most unbounded indulgence has been shown to the ignorance, unskillfulness and negligence of testators. Ho degree of technical informality or grammatical or orthographical error, nor the most perplexing confusion in the collection of words, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part of the will and the whole carefully weighed together.” The testator did not intend to die intestate as to any of his real estate, and it is therefore our duty, if we can, to so construe his will as to effectuate that intention. And we must also observe the rule which requires courts, if possible, so to construe any disputed provision in a will as to uphold it and make it valid, and thus enforce the maxim ut res magis valeat quampereat. The testator made such provision for his heirs as he desired, and by upholding these clauses in his will as the courts below have construed them, we think his intention will be most nearly observed. The only real estate trust the testator attempted to create in the twenty-fourth clause, is one to mortgage the real estate therein mentioned. He devised and bequeathed all the residue of his real and personal estate to his executors upon trust to use the same- as in their judgment they deemed to be for the best interest of ins whole estate. The word “ use ” is wholly inappropriate to real estate. This was a disposition to take effect at his death, and he had previously in his will given to his wife a life estate in these houses and lots, and hence she, during her life, was entitled to the rents and profits, and for that reason the testator could not have intended that his executors were to use the houses and lots by receiving the rents and profits thereof. In 'writing that *338 word the draughtsman must have had in mind mainly and most prominently the personal property. That was to be used for the benefit of his whole estate, and then it is specified how the real estate was to be used, to wit: By raising money upon it by mortgage, and that was the only use that could be made of it consistently with the prior disposition of it to his wife for life. What the testator intended was to give to his •executors the right to use Ms personal and real estate, the ■former in any way for the best interest of Ms whole estate, •the latter to raise money by mortgage for the benefit of ¡his whole estate; and it was the personal property and •the money thus realized, upon the real estate which, after paying and keeping paid all taxes and assessments upon the .houses and lots and expending such amounts as the executors ■might deem necessary to keep the houses in repair and ■properly insured, -which at any time within ten years they •were to divide and pay to each and every of his legatees mentioned. It is clear that the words “to divide and pay •the remainder,” have no reference to the real estate. The word “pay” is not properly used to denote the distribution -or division of real estate. The testator could not have -intended to give his executors the power to divide and deliver .the real estate to the legatees at any time within ten years, and thus put it in their power to interfere with his wife’s life .estate. Then, too, if those words relate to real estate, the ■.twenty-fifth clause providing for the final disposition of the real estate was unnecessary. The twenty-fourth clause makes .a final disposition of the personal property, including the balance of money realized by mortgaging the real estate, and the twenty-fifth clause makes a final disposition of the real .estate. Hence there was an attempt to create two trusts by the twenty-fourth clause: One was a trust to mortgage the real ■estate, and that was invalid because the mortgage was not for --the benefit of legatees or for the purpose of satisfying any -charge upon the land. (1 R S., 728, § 55.) But even if ■valid, it would have vested no estate in the trustees as it is *339 provided in section 56 that “ a devise of land to executors or other trustees to be sold or mortgaged, when the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the land shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.” Section 58 provides that “ where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees, but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust; ” and section 59 provides that “ in every case where the trust shall be valid as a power, the land to which the trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power.” Hence, whether the trust attempted to be created in the twenty-fourth clause was valid or invalid, it did not suspend the power of alienation, nor prevent the vesting of the estate in the devisees mentioned in the twenty-fifth clause. It is not important to determine whether the attempted trust can have effect as a power, because if it can, it still in no way interferes with or affects the disposition of the real estate made in the twenty-fifth clause. It may, nowever, be stated that the power has not been executed and no party to this action claims that it ought to be, or that it is so definite in its objects that it can be. There was also an attempt to create a trust in the personal property as above mentioned, which might last for ten years, and which was probably expected to terminate at the death of the widow within that time. It is not important to determine whether that is a valid trust, as it in no way concerns the real estate, and all the parties to this action have assumed it to be invalid. There was nothing, therefore, in the twenty-fourth clause which could in any way interfere with or defeat the full and entire operation of the twenty-fifth clause. That provides *340 that “ npon the termination of the real estate trusts herein contained where I have not hereinbefore disposed of the fee of my real estate, I do hereby give, devise and bequeath the fee of said real estate trust property ” to the legatees named. It is claimed by the appellants that the words “ real estate trust herein contained” have reference to all the eighteen real estate trusts created or mentioned in the will, and hence that the real estate could not vest under that clause in the devisees mentioned until the termination of all of those trusts, and that so the clause is invalid for various reasons. But, we think, these words refer to the real estate trust mentioned in the preceding clause. It is true that the plural “trusts” is used. That may have been from the inadvertence of the scrivener, or because he had in mind the four houses and lots, or the various matters to which the money realized by mortgage was to be devoted. But it is clear that the “ trusts ” referred to related to real estate of which the testator had not disposed of the fee, and the real estate mentioned in the preceding clause was the only real estate of which he had not disposed of the fee. Therefore, the words “ upon the termination of the real estate trusts ” can have no meaning or effect attributed to them, as the trust attempted to be created had no term, no beginning or end, and the devise of the real estate took effect at once upon the testator’s death as a vested remainder subject to the life estate previously given to his wife. The only remaining difficulty of a serious nature which we encounter in the construction of these clauses is to determine who were meant by “the legatees.” The devise was to “ each and every of my legatees herein named, except Ann Davey and Hugh Collins, to be divided between such legatees in the proportion in which his, her or their specific legacies hereinbefore named and bequeathed bear to each other.” {Strictly spealdng there were no legatees mentioned in the previous clauses of the will except his wife. She was the only person to whom personal property was bequeathed. All 'the other beneficiaries were given either real estate or the *341 income of real estate through the hands of trustees. The word “ legatees,” as used here, cannot, therefore, have its strict legal significance as one who takes personalty under a will and it was not intended that it should. It was clearly meant to include persons to whom real estate, or the income of real estate had been given, and this is made evident from the fact that Ann Davey and Hugh Collins, who were devisees of real estate, were excluded from the persons who were called legatees. The inference is that, but for the exception, the testator supposed they would be included in the term “legatees.” It is not believed that he intended to include his wife among those whom he called “ legatees.” He was a very old man at the time of his death, passed eighty years, and when he made his will could not have expected to live long, or that his aged wife, also past eighty, would long survive him. He had given to her real estate in fee valued at over $200,000, besides a large amount of personal property, and the income and profits of the four houses on Fifth avenue. He had made liberal provisions for several of her relatives, and it is not probable, if he intended to make further provision for her, that he would have included her with others under the general designation of “ legatees.” The legatees mentioned in the twenty-fifth clause are clearly the same persons intended to be described by the term legatees in the twenty-fourth clause, and there it is quite clear that the wife was not intended as one of the legatees, because the distribution and payment there directed to be made might be postponed ten years and was probably intended to be postponed until after her death. There is also a reasonable probability that he did not intend to embrace among the legatees the devisees who took the real estate in remainder, after the termination of the seventeen trusts. In several of the clauses, the wives of the beneficiaries are named as devisees in remainder; in several, the devisees are the issue of the heirs of the beneficiaries, and in several, it is provided that the issue of any one of the deceased heirs of a remainderman shall take the share the *342 parent would have taken if living. It is not reasonable to suppose that the testator meant to include among the legatees only the wives and issue of life beneficiaries specially named, and not all the remaindermen specially designated, although not specially named, including the unborn issue and heirs of life beneficiaries. If the word “ legatees ” is to have the broad signification claimed, then it would be impossible during the life of any beneficiary to ascertain who the legatees are, and therefore impossible to uphold the devise in the twenty-fifth clause. If such a construction would not render the clause invalid for any other reason, it would render it so impractical and indefinite that the land could not be divided and distributed under it. It is clear that the word “ legatees ” used in the twenty-fourth clause was not intended to embrace the unborn issue or heirs of any life beneficiary, because the distribution and payment there directed was to be made at any time within ten years after the death of the testator, and as the same word in the twenty-fifth clause is to have the same meaning, it cannot be held to embrace the unborn heirs of a life beneficiary, and, as before said, unless it can be held to embrace all of the remaindermen, it can embrace none of them. This scheme of division and distribution attributed to the testator by the appellants is so extraordinary, impractical and embarrassing that it should not be taken to embody the testator’s intention. Who, then, was meant by the word “ legatees % ” We think that it is reasonably probable that the testator meant the life beneficiaries and JParschall. The fact that he excepts Hugh Collins and Ann Davey, who.are devisees in fee, shows that Parschall who was a devisee in fee was meant to be included among the legatees. The value of the real estate devised to him is but $1,800, and his proportion, therefore, will be quite small. The life beneficiaries were prominently in the testator’s mind, and from their relationship to him ov to his wife were the conspicuous objects of his bounty. They were selected as heads of families for whom he meant to provide, giving them the income of the property during life, and then *343 giving the property in which they had a life interest to their widows, issue and heirs. As the property was thus disposed of after their use of it would be terminated by death, he evidently regarded it as if they were the real and only objects of his benefaction, and the provision for the remaindermen was on their account. This conclusion is fortified by a consideration of the last two paragraphs of the twenty-fifth clause. Did he mean by “ the heirs of such legatees as may have died ” the heirs of a remote remainderman, who might be wholly unknown to him ? He clearly meant the heirs of a legatee known to him and then in his mind. When he said he meant to regard each of his legatees “ as a legal heir ” of the real estate mentioned, he probably had in mind some definite persons well known, whom he meant to bring into the intimate relation with him and his estate of heirship. We think these are reasonable views to take of the testator’s scheme, and they will render the twenty-fifth clause practical and valid ; and we are, therefore, not without some hesitation and difficulty, brought to the conclusion that the court below was right in holding that the eighteen persons named, to wit, the seventeen life beneficiaries and Parsehall, were the sole devisees under the twenty-fifth clause of the will. The next difficulty to be encountered pertains to the method or basis for the division of the real estate between these devisees. It was to be divided in “ the proportion in which his, her or their specific legacies hereinbefore named or bequeathed bear to each other.” The words, “specific legacies,” have reference, evidently, to the specific real estate provided for each of the beneficiaries and their wives, heirs and issue. That is in each case specific. There is no difficulty in ascertaining what proportion each share of the real estate bears to all the real estate devised. The real estate provided for each beneficiary, and after him for his family, is spoken of as his, and it is on the basis of the value of that real estate that his proportion of this real estate is to be ascertained, and that is the way in which it is directed to be divided by the judgment of the court below; and in that *344 we concur. Any other basis for a division would be impractical, and should not, therefore, be adopted. It must be conceded that much may be said against any construction which the courts could give to the twenty-fifth clause; but, on the whole, we think that the construction we have thus given has the most reasons to sustain it, and probably accords with the intention of the testator. Wé have, therefore, concluded that the order appealed from is right and should be affirmed, without costs to any of the parties. All concur except Andrews. J., not voting. Order affirmed.