In re the Judicial Settlement of the Account of Proceedings of Oakley

O’Brien, J.: tlpoñ the accounting of the executor of William H. Oakley, who died in Yew York city January 24, 1893, leaving a last will and testament, the question arose whether under such will his daughter Louise S. Berlin, who was a widow and living with the testator at the time, of his death, was entitled to receive the entire income of •the estate, or whether it should be divided between her and her brothers and sister, William H. Oakley, Charles S. Oakley and Clara Meyerkort and the son of her deceased sister Kate Oakley Brown, Oakley K. Brown. Although Louise S. Berlin was married when the will was made, her husband had died during the life of the testator and she had not remarried. Clara Meyerkort was [495] married in the lifetime of the testator and her husband was still living. Kate O. Brown had married and died during the testator’s life, her only child being Oakley K. Brown, who is now living with his father. The testator in his will, after making minor bequests to his several children, forgiving them any sums advanced to them and stating that his life insurance was to be divided equally among them, which he considered would “ supply them with sufficient funds for present purposes,” provided that “inasmuch as it is my desire that my country place * * * be for a reasonable time maintained in its present condition for the purpose of affording a home for such of my daughters as remain unmarried and such, if any, as become and remain widows and the minor children if any of such widowed daughters,” the rest of his property was given in trust to his executors “ for and during the lives respectively of my two daughters, Louise and Clara, and the survivor of them, but not exceeding, however, the term of twenty-five years,” to invest all his personal estate except the country home, to pay taxes thereupon and insurance, and in case of fire to rebuild the same with the insurance moneys, and “ the balance of the income of my entire estate so long as any of my daughters shall remain unmarried, my said trustees shall pay in quarterly yearly instalments to such of my daughters who are at the time unmarried, and such of my daughters who having been married are then in a state of widowhood, share and share alike, that is to say, the whole balance of such income shall be equally divided between my daughters then unmarried or widowed for their support and maintenance, provided, however, that if such widowed daughter or daughters shall die while in the state of widowhood leaving issue, such issue shall have the share of such income which the widowed mother of such issue would have received if living, for its or their support and maintenance. * * * If at any time there shall be but one daughter and she unmarried, entitled to receive income under the foregoing provisions, she shall receive the whole of such income until by reason of widowhood any of her sisters, or by death of such widowed sister, any of such widowed sister’s children become entitled to share therein with her.” The next paragraph, which is the “Fourth,” provides: “If all my daughters living shall have married before [496] the term limited for the termination of the trusts herein provided, thenceforth, namely, from the time of the marriage of my last living unmarried daughter, I direct the net income of my entire income bearing estate to be divided among and paid quarterly to all my children then living, share and share alike. If any shall have died or shall die thereafter and during the continuance of said trusts, leaving issue, such issue shall receive the share of said income which the parent if living would, have taken.” The following or 5th clause of the will provides: “ It is my desire that só long as any of my daughters remain unmarried, they jointly, or if but one, she, continue to occupy and make a home at my said country place * * * provided, however, that if any of my daughters who has or shall hereafter marry shall become a widow she and her children shall be entitled to share jointly with the other occupants or occupant in the use and occupation of said premises.” Further, it is provided that if during the term limited for the trust the said house should be without an occupant the executors may rent it for yearly leases, and, finally, when the period is ended, the residue of the estate should be divided between the five children, share and share alike. Louise S. Berlin, who at the death of the testator was a widow,. claims that she is entitled to the whole of the income tinder the clause that “If * * * there shall be but one daughter and she unmarried, entitled to receive income, * * * she shall receive the whole of such income until by reason of widowhood ”'of any of her sisters they share with her. In opposition to this claim it is contended that Louise S. Berlin was not “ unmarried,” but, on the contrary, had been married and was a widow, and, therefore, the income of the estate should be divided equally among the five children under the 4th clause. The surrogate found in favor of Louise S. Berlin, and from the decree awarding her the entire income the other children of the testator appeal. The appellants contend that the ordinary meaning of the word “ unmarried,” i. e., never having been married, should be given, and our attention has been called to the case of Dalrymple v. Hall (16 Ch. Div. 717), wherein it was held, as stated in the head note, that “ In the absence of context showing a contrary intention the word ‘ unmarried ’ must be construed according to its ordinary or primary meaning as ‘ never having been married,’ and, therefore, that the gift [497] to the children of B. did not take effect,” he being a widower. That case, however, is equally an authority for holding that where the context does show a different intention, the word “ unmarried ” should not be defined as “ never having been married.” In the present will the language expresses the clear intent of the testator that there should, at all times during the trust period if desired by' them, be had arid kept, a suitable home, wherein his unmarried and widowed daughters might live. And to this scheme ■or plan for these daughters everything was made subservient. To this end he directed his executors to keep for them the country place intact so that they would have a home, and to this home any daughter who became a widow during the trust term was to be admitted. And besides providing for a home for such daughters, his purpose was to provide them with an income during that period in order that they might live in the home and be provided for in other ways so as to give to them the same comforts and care that the married daughters received from their husbands, and to the benefit of this fund any daughter who became a widow during the trust period was to be admitted just as she was to be admitted to the home itself. To effectuate this intent it was as necessary that the provisions in the will should apply as well in case there was a widow as where there was a daughter who had never been married, and when in one instance the testator used the word “ unmarried,” and did not accompany it by the words “ or widowed daughter,” it is clear that by “ unmarried ” he meant a daughter who was not then married. In fact, the testator had previously provided that the "whole balance ” of the income of his entire estate the executors should pay to unmarried daughters and those in a state of widow hood, and the further clause was added apparently for the purpose of limiting the time when such unmarried daughter or widow should receive the entire income, i. e., until such time as there should be another who had become a widow and who thereupon was to share in the income. In other words, the intention of the testator was to create a trust by which any daughter who was unmarried or was a widow or should become a widow, should be, provided for by receiving the trust income, and this was co-ordinate to his intention of providing [498] a home for such daughters. If the appellants should be successful on this appeal, and the trust income should be divided under the 4th clause, share and share alike, then this purpose and intention would be frustrated. Thus, for instance, if Clara Meyerkort should become a widow, she would not be able to receive from the income ■of the trust estate the proportion that the testator intended. -Only in the case that all the daughters were married and their husbands were living, was it intended by the testator that the income of the trust estate should be divided as. stated- in the 4th clause, share and share alike. This clause is thus brought in harmony with the rest of the will, and the full purpose and intent of the testator-carried out. . . - We think, therefore, that the daughter Louise S. Berlin should receive the entire income of the trust estate until she becomes married, until there be another widow to share with her or until the termination of the term of the trust. The judgment, accordingly, should be affirmed, with costs. Ingraham, McLaughlin and Hatch, JJ., concurred; Van Brunt,, P. L, dissented.