In re Bassford

Laughlin, J.: The testatrix left no father, mother or direct descendant and no brother and only the one sister named in the will and codicil. She was survived by her sister and by the nephews and the niece named in the will and by other nephews and nieces. It is manifest that she intended and attempted to dispose of all of her property by the will and codicil to the exclusion of her heirs excepting as provisions were made therein for the benefit of some of them. This she had a perfect right to do, and the point presented for decision is whether by the will and codicil, which were duly executed, she manifested such intent in the manner prescribed by law so that it may be carried into effect. It will be observed that neither the will nor the codicil created any express trust in the executrix and executor with respect to the real estate during the life of the sister of the testatrix and that by the will she expressly gave to her sister for life the use of all her real estate and leasehold property other than the premises she devised to her outright by the second clause of the will; and by the codicil she expressly reaffirmed this by providing that her sister should have the sole right during the term of her natural life to all the rents arising therefrom. It is perfectly clear, therefore, that both by the will and the codicil the sister of the testatrix was given the use and enjoyment of the other real property for life. It is equally clear that by the will she attempted to make her executor, upon the death of her sister, trustee of an express trust to collect the rents, issues and profits of the remainder of the real property and to pay therefrom taxes, assessments, interest on mortgages and the expenses of keeping the premises in good repair and to divide” the surplus into five equal parts and to pay one part to each of the four nephews and to the niece therein named, if living, and in the event of the death of a nephew or of the niece, then to pay the part intended for the deceased nephew or niece to the institution taking the remainder on the death of such nephew or niece as prescribed in the 5th clause of the will wherein she provided the order in which the institutions should take the respective undivided fifths of the remainder. It is evident also that she intended that the respective institutions should take — 745 — the respective fifths of the remainder in fee upon and in the order of the deaths of the nephews and niece, for she expressly so provided in each of the five subdivisions of the 5th clause devising the respective fifth of the remainder; but notwithstanding such vesting of the fee of the remainder, she attempted to provide by the 6th clause that her executor should continue to manage the real property in its entirety and to collect and disburse the rents arising therefrom until the death of the last survivor of her nephews and niece. If we should hold the codicil invalid, it would become necessary to decide whether the 6th clause of the will could be sustained on the theory that it provides for five separate trusts, which is clearly shown to have been the intent of the testatrix both by the provisions of the will that the institution taking the remainder upon the death of the nephew or niece should take the share of the surplus income which the deceased nephew or niece would have taken but for his or her death, and by her declaration in the codicil that she had by the will bequeathed to each of her nephews and to her niece an equal undivided fifth part of the surplus income, and that each trust was only for the life of a nephew or niece, and that her attempt to empower her executor to manage for the institution the remainder vested in it might be deleted or regarded as not affecting the remainder in fee devised to the institution; but if the codicil can be sustained, it is unnecessary to decide or to consider those points. We find that by the codicil the testatrix not only declares that it is a codicil to this will and testament, which she identifies by the date of its execution, but she declares that it is to be taken as a part thereof, and after reaffirming the life estate of her sister in the remainder, she severs the remainder into two parts and provides that one of the nephews named in the will shall take, during life, the surplus income arising from the premises at the southeast corner of Avenue G and Second street, and that her other three nephews and niece named in the will shall each receive, during life, one-fourth of the surplus rents of the remainder of the real property. These provisions made the executor trustee of express trusts and vested in him as trustee the legal estate for the period of the respective trusts with respect thereto. (Tobias v. Ketchum, 32 N. Y. 319; Garvey v. McDevitt, 72 id. 556; Matter of Magnus, 179 App. Div. 359; Mee v. Gordon, 187 N. Y. 400.) There can be no doubt but that the codicil in so far as it gives to one of the nephews the surplus income arising from the specified premises at the southeast corner of Avenue C and Second street is valid, for with respect to that, clearly the power of alienation was only suspended during the life of the sister of the testatrix and that particular nephew. I am also of opinion — 746 — that the codicil can and should be sustained as giving an undivided one-fourth of the surplus income of the remainder of the real property to each of her other nephews and to her niece, for by specifying that each is to have one-fourth only and by not attempting, upon the death of one, to give his or her one-fourth of the income to the survivors, she has, I think, made it clear that she intended to create four equal separate trusts in the surplus income, one for each of her three named nephews and one for her niece; and on that theory the trust as to each would terminate upon his or her death. (Denison v. Denison, 103 App. Div. 523; affd., 185 N. Y. 438; Stevenson v. Lesley, 70 id. 512; Savage v. Burnham, 17 id. 561; Vanderpoel v. Loew, 112 id. 167; Hardenbergh v. McCarthy, 130 App. Div. 538.) On this point the codicil contains no gift of that part of the surplus income which a deceased nephew or niece but for his or her death would have taken, and contains no provision continuing or attempting to continue the trust with respect to such fourth of the remainder. The most troublesome point presented for decision is with respect to whether there is a valid disposition by the codicil of either or both of the remainders into which the testatrix upon the death of her sister so divided the remainder for the purpose of giving the surplus income of the specified parcel to one nephew and one-fourth of the surplus income of the rest of it to each of the others. The attempted devise of these remainders is in the final sentence of the codicil, which immediately follows the sentence giving the surplus income of the specified premises to one of her nephews and one-fourth of the surplus income of the remainder to each of the other three nephews and to the niece. By the codicil the testatrix says, “ After their deaths, I give, bequeath, and devise to ‘ The Sisters of Charity of the St. Vincent de Paul,’ ” describing it as a corporation and specifying the particular institution under its charge which she desires to have the benefit of the devise. The words “ their deaths,” as here used, plainly refer to all of those mentioned in the preceding sentence, viz., the four nephews and the niece, who were given life estates; and, therefore, the reasonable inference is that she was attempting to make some disposition of the property in which they had life estates and that embraced all of the remainders including the specified premises, the surplus income of which for life she had given to one of her nephews. All that remained of that property not otherwise disposed of, was remainders, viz., the remainder in the specified property, the trust with respect to which was to fall in on the death of the nephew who was to take the income thereof during life, and the undivided fourths of the other remainder, the trust with respect to each of which was to fall in — 747 — on the death of the nephew or the niece who was to receive the income thereof. With respect to such remainders she might have attempted to provide for further trusts but they would have been invalid and that should not be presumed, for there is nothing in the phraseology employed to indicate that she intended any disposition of these remainders other than absolute devises. She might have devised only part of the remainders but that would have left the provisions of the will indefinite and, at least, of doubtful validity with respect to devising the rest. The words employed, " I give, bequeath, and devise,” plainly indicate an-intent to make an absolute devise and they remain unmodified by any other provision of the codicil. It seems to me, therefore, that we are not left to speculate either with respect to the property which she was attempting to give, bequeath and devise or with respect to the nature of the gift, bequest and devise she intended to make, and that it plainly appears that she intended to give, bequeath and devise all of the remainders absolutely to the Sisters of Charity of St. Vincent de Paul. The will and codicils are written in longhand and show either a lack of care or knowledge concerning proper punctuation and the proper use of capitals. Both by the will and by the codicil she attempted to provide that all the remainder of her real estate should be held by her executor upon certain trusts. By the codicil she so changed the trusts as to require a division or a different division of the corpus of the remainder; and then it is manifest that she attempted to devise the remainders by giving all of them to one of the charitable devisees named in the will. Although she has omitted expressly to state that she was attempting to give, bequeath and devise these remainders, by failing to use the words “ the remainders ” or “ the real property ” or “ the rest ” or “ the residue ” or equivalent words, still since her intent is plain, the omission may be deemed to have been inadvertent and may be supplied by implication in order to give -effect to her intent and to sustain the codicil. (Matter of Bassett, L. R. 14 Eq. Cas. 54; Eidt v. Eidt, 203 N. Y. 325; Phillips v. Davies, 92 id. 199; Marsh v. Hague, 1 Edw. Ch. 174; Pond v. Bergh, 10 Paige, 140; Starr v. Starr, 132 N. Y. 154; Masterson v. Townshend, 123 id. 458; Roe v. Vingut, 117 id. 204, 216; Matter of Vowers, 113 id. 569; Matter of Farmers’ Loan & Trust Co., 189 id. 202; DuBois v. Ray, 35 id. 162; Kahn v. Tierney, 135 App. Div. 897; Bradhurst v. Field, 135 N. Y. 564, 568.) In Eidt v. Eidt (supra) in construing a will, the word “ and ” was supplied to give effect to the intent of the testator, and the Court of Appeals, in declaring the effect to be given to the plain intent' of the testator, said: "It overrides the inadequacy or — 748 — incorrectness of the language or the punctuation, or any crudity of the will. To effectuate it, the courts will transpose or insert or disregard words or phrases.” In Matter of Farmers’ Loan & Trust Co. (supra), in discussing the authority of the court in construing a will to carry into effect the intent of the testator, it was said: “ The courts may supply words, phrases, punctuation, and even transpose sentences in order to ascertain and determine the intent of the testator.” In Phillips v. Davies (supra) the Court of Appeals held that where on an examination of a will the intention of the testator is plain, the court has the right and it is its duty to subordinate the language to the intention and that “ in such a case, the court may reject words and limitations, supply them or transpose them, to get at the correct meaning.” In Dreyer v. Reisman (202 N. Y. 476) the testator, after deducting the payments of his debts and funeral expenses and expenses of administration, attempted to make a gift, devise and bequest of some kind to his children but did not specify the property, and he also directed that his real property should be sold. The court refused to supply words to describe any property on the ground that the intention of the testator with respect thereto was not expressed. But the provisions of the will concerning a devise to the children did not relate to any particular property, while in the case at bar it is perfectly clear that the provisions of the will by which the testatrix attempted to make the devise related to the remainder and, therefore, the property is sufficiently identified. In Leggett v. Stevens (185 N. Y. 70) the testator directed that after a life estate a trust fund should be equally divided between his adopted daughter, if living, and if not that it should go to his next of kin. He left an adopted daughter and a son. The court refused to supply words to entitle the son to take half of the fund on the ground that there was no certainty with respect to whom he intended should share it with the adopted daughter. In Brown v. Quintará (177 N. Y. 75) the testator left four children and gave one-fourth of his residuary estate to one of his sons but failed to dispose of the other three-fourths. The court refused to supply by implication words appropriate to give one-fourth to each of the other sons. The fact that these provisions are in the codicil does not, I think, affect the construction to be given thereto. The testatrix had attempted to dispose of the remainders by the will by giving an undivided two-fifths thereof to the St. Joseph’s Home for Aged Females, which the will states was under the charge of the Sisters of Charity of St. Vincent de Paul; and, therefore, that devise is the same, in effect, as the devise in the codicil to the corporation known as the Sisters of Charity of St, Vincent de Paul for the use — 749 — and benefit of said home, by giving another fifth to St. Vincent’s Hospital, which likewise was stated to be under the charge of the Sisters of Charity, and, therefore, the effect of the change with respect to that fifth is to direct that the corporation should use it for the benefit of the home instead of the hospital; and by giving the other two-fifths to the Roman Catholic Orphan Asylum. Thus by the codicil she eliminated the hospital and gave the fifth for the use of the home under the same management. The controversy with respect to whether these remainders have been validly devised under the codicil or pass under the will is between two charitable institutions of the same religious denomination and virtually relates to two-fifths only of the remainder. The reasonable inference is, I think, that the testatrix changed her mind after making the codicil and decided to devise all the remainders for the benefit of the home to which she had given two-fifths thereof by the will; and if so, all devises of remainders by the will were necessarily revoked by implication. (Van Nostrand v. Moore, 52 N. Y. 12.) I am, therefore, of opinion that the learned surrogate was right in sustaining the validity of the codicil, and if so, no other point is presented for decision. The heirs only have appealed from the allowance to Cuvillier as special guardian; but if the remainder passes under the will or codicil, they have no interest in the estate. Appellant Hamersley was appointed special guardian to represent certain infant heirs and incompetent heirs in the accounting proceeding, and appellant Cuvillier was appointed special guardian of the same heirs in the proceeding for the construction of the will. It would seem that the same special guardian should have been appointed in each proceeding; and since that was not done, one of the special guardians should have been discharged when the proceedings were consolidated. Failure to do that has led to an appeal by each of the special guardians, notwithstanding the fact that the appeal presents no points with respect to the accounting excepting those which depend on the validity and construction of the will, and the cestuis qui trust have no interest unless the testatrix dies intestate with respect to some or all of the remainders in the real property. But if any of the trusts attempted to be created by the will and codicil should be held to be invalid, then other questions, which arose on the accounting, involving the application of the Statutes of Limitations, would require consideration. In the circumstances, therefore, it cannot be said that the appeal by the special guardians or by either of them was unwarranted. It follows that the decree should be affirmed, with separate bills — 750 — of costs to the respondents separately appearing and to each of the special guardians, payable out of the estate. Clarke, P. J., Smith and Merrell, JJ., concur; Greenbaum, J., dissents. Decree affirmed, with separate bills of costs to the respondents separately appearing and to each of the special guardians, payable out of the estate.