In re the Application for a Compulsory Accounting by Grace

Edgcomb, J. Mary D. Grace died on January 15, 1918, leaving a last will and testament, which has been duly admitted to probate by the surrogate of Onondaga county. Three proceedings have been instituted in the Surrogate’s Court of Onondaga county, one to compel the executrices and trustees to account and to remove them from office, one to judicially settle the accounts of said executrices, which they filed after the institution of the first proceeding, and the other to have the will judicially construed. The surrogate dismissed the first application and granted the second by one decree, and in separate decree construed the will. William D. J. Grace, a son of decedent, was dissatisfied with all three decisions, and has appealed to this court. Upon motion of appellant’s attorney the surrogate at the trial — 78 — granted an order to consolidate the three proceedings. By virtue of sections 260 and 309 of the Surrogate’s Court Act the first and second proceedings may be deemed, for the purposes of these appeals, as the first proceeding, and the proceeding for the construction of the will, as the second proceeding. Mrs. Grace had three sons, William, George and John Charles, and two daughters, Anna and Catharine. Her husband predeceased her by some years. She lived in Syracuse with her two daughters, neither of whom was ever married. John Charles was incompetent, and had been confined in the State hospital at Ogdensburg for several years prior to his mother’s death. William had been given more than his share in his mother’s estate sometime prior to the execution of her will. He was the only child who Was married, or who had any descendants. The will is dated August 17, 1914. After making several specific bequests in the first eight paragraphs, which are not important to this decision, testatrix, by the 9th, 10th and 11th clauses, created a trust, which is the bone of contention here. In the 9th clause she gives the residue of her estate to her two daughters in trust for the use and benefit of her four children, Anna, Catharine, George and John Charles, and directs that the net income thereof be paid quarterly as follows: One-quarter to Anna Mary Grace; one-quarter to Catharine Rose Grace; one-quarter to George C. A. Grace. “ The remaining one-fourth of said net income to be retained by said trustees for the use and benefit of my son, John Charles Grace, to provide for his necessary needs, comfort and maintenance.” In the 11th paragraph testatrix provides that, if any of her children named in the 9th clause of the will die, leaving issue surviving, the trust as to such deceased child shall terminate, and the share or portion belonging to the child thus dying shall pass and belong to his or her lawful issue, share and share alike. The contingency of any of testatrix’s children dying without issue is taken care of by the 10th clause of the will. That paragraph reads as follows: “ In the event of death of either of my said two daughters, or of my said two sons, viz., George C. A. Grace or John Charles Grace, leaving no lawful issue her or him surviving, then I will and direct that the share of my estate herein bequeathed and devised in trust for the benefit of my daughter or son thus dying shall, in equal shares, belong to, and the net income therefrom shall, in equal shares, be paid to all of my surviving children, including William D. J. Grace, if he be then living, and in case he be then dead, to his lawful issue, if he leaves such issue. “ The trust hereby created shall thereupon continue in full force and effect for the benefit of my remaining four children, so long as — 79 — they shall all live, but in the event of the death of one or more of them, leaving no lawful issue her or him surviving, then I will and direct that the trust pertaining to and impressed upon her or his share of my estate shall cease and terminate, and her or his share of my estate shall thereupon pass and belong to my next of kin and heirs at law, pursuant to the statute in such case made and provided, and that the trust hereby created shall then continue in force for the benefit of my remaining children, and shall finally cease and terminate only after the death of the survivor of my said children, and thereupon and at that time, the balance of my estate shall pass and belong to my next of kin and heirs at law, pursuant to the statute in such case made and provided.” On December 1, 1914, Mrs. Grace added a codicil, which provides as follows: “ In case my son, George C. A. Grace, or either or both of my daughters mentioned in the ninth paragraph of my said last will and testament, should die without issue before the death of my son John Charles Grace, then and in that event, it is my wish and desire, and I hereby will and direct, that the share of such deceased son or daughter shall remain a part of the trust fund created by said ninth clause, the net income from said share to be paid quarterly to the surviving child or children mentioned in said ninth clause, and to my son William D. J. Grace in equal shares, and I further will and direct that the ownership of no part of my estate shall vest absolutely in my son John Charles Grace, but any money or property which would otherwise descend to him by the terms of my said last will and testament shall be held in trust for him by my trustees mentioned in my said will during his lifetime, as provided by the ninth clause of my said last will and testament.” The will and codicil must be read together, and wherever the provisions of the will are changed by the codicil, the latter governs. That is expressly provided in the codicil where the testatrix declares: “Any and all provisions of my said last will and testament in conflict with the provisions of this codicil I hereby cancel, revoke and set aside.” It is unnecessary to enter into any lengthy discussion of the proper interpretation to be given to this will and codicil, because, with the codicil read into the will, in our opinion, the trust which decedent attempted to create is void as contrary to the Statute against Perpetuities. (See Real Prop. Law, § 42; Pers. Prop. Law, § 11. See, also, Laws of 1929, chap. 229, amdg. said sections.) The will speaks as of the date of Mrs. Grace’s death. Whether or not it violates the Statute against Perpetuities must be determined as of that date and not as of some subsequent time. Its validity depends not on what has occurred since the death of testa — 80 — trix, but upon that which might have happened the very day she died. (Matter of Wilcox, 194 N. Y. 288; Herzog v. Title Guarantee & Trust Co., 177 id. 86, 99; Simpson v. Trust Co. of America, 129 App. Div. 200, 203; affd., 197 N. Y. 586.) When testatrix drew her will it is quite evident that she had in mind the fact that a lawful trust could not be created if the power of alienation was suspended for a period longer than two fives in being. A proper construction of that instrument shows that she kept well within the statute. But when it came to execute her codicil, testatrix evidently forgot all about the limitations which she could put upon the vesting of her estate. It is the codicil which causes all the trouble here. Decedent did not want the title to any of her property to vest in her incompetent son. Her intent is clear. If her directions were to be carried out, and John Charles outlived all his brothers and sisters, a part of his mother’s estate would, before it could possibly vest, come down through five fives in being, a part through four, and still another part through three fives. This clearly comes within the ban of the statute. I am not unmindful of the rule stated in Roe v. Vingut (117 N. Y. 204, 211) and Phillips v. Davies (92 id. 199) that of two or more constructions, all of which are reasonably possible, the one which will sustain the validity of the instrument is ordinarily to be preferred to the one which will defeat it. I have not overlooked the rule laid down in Kalish v. Kalish (166 N. Y. 368); Smith v. Chesebrough (176 id. 317); Underwood v. Curtis (127 id. 523); Matter of Trotter (104 App. Div. 188; affd., 182 N. Y. 465) and kindred cases, that when invalid provisions of a will may be eliminated so as to leave intact the parts that are valid, and preserve the general plan of the testator, such a construction will be adopted as will prevent intestacy, either partial or total, as the case may be. My attention has been called to numerous decisions where objectionable provisions have been cut out of a will by judicial decision, and the parts which are good have been saved. But that can only be done when that which is illegal can be removed without harm, and when a perfectly good and workable will is left. Judicial surgery cannot be resorted to, to borrow the language of Judge Pound in Matter of Trevor (239 N. Y. 6, 18), where it is necessary to “ perform a radical operation to remove a malignant growth where either the disease or the operation will take the fife out of the testamentary document.” It is impossible for me to figure out with any degree of accuracy how much of this estate might eventually come down through more than two fives in being at the date of testatrix’s death. The good and the bad are so closely interwoven and intermingled that they — 81 — cannot be separated without talcing the life of the instrument. The trust must, therefore, fail altogether. I have, therefore, reached the conclusion that all of the provisions of the will after the 8th paragraph are void, and that the decedent died intestate as to the residuum of her estate. The fact that all the parties have from the outset acted upon the assumption that the trust was legal and have never questioned its validity, and the further fact that one-quarter of the income cf the corpus has been paid regularly to each of the children mentioned in the 9th paragraph of the will until George died in February, 1926, and that thereafter five-sixteenths of said income has been paid to each of the three remaining children, and the other one-sixteenth to William, does not change the situation. While the construction given to a will by the members of decedent’s family is .a circumstance entitled to great weight (Starr v. Starr, 132 N. Y. 154; Smith v. Bartlett, 79 App. Div. 174), it is not sufficient to make valid that which the statute has declared invalid. When John Charles died on November 21, 1927, the executrices took the position that the trust terminated upon' his death, and they then proceeded to distribute the remaining assets in their hands as executrices and trustees equally between themselves and their brother William, the surviving children of testatrix. The surrogate has upheld such construction of the will. Although the appellant took issue with this contention, and insisted that the trust for each surviving child continued until the death of that child, and as each died, after the first, his or her share vested in his or her descendants, if any, and otherwise in the next of kin or heirs at law of decedent, he accepted and has retained the third of his mother’s estate which the executrices have turned over to him, and has never tendered back any part thereof. If I am right in my conclusions that Mrs. Grace died intestate as to the residuum of her estate, appellant would be entitled to one-fifth part thereof. He has been paid one-third. He has, therefore, received more than his share. His sisters, however, have not appealed from the decree of the surrogate, and the overpayment cannot be recovered in this proceeding. Appellant claims that the account of the executrices should be surcharged with various items for which they have not accounted. It is unnecessary to go into these items. In 1902 and 1903 Mrs. Grace advanced appellant $47,175.39, and in consideration thereof he executed an agreement in which he released all of his interest in her estate, both real and personal, and all his claims in expectancy in case of her death, as an heir at law, if he should survive her, until after each of his sisters and his two — 82 — brothers, if they survived their mother, had received, either personally or as beneficiary of a trust created for their benefit by their mother, or as their mother’s heir, or by any or all of said means, property, either real or personal, or both, amounting in value to $38,000. Neither John Charles nor George ever received from their mother any such sum. George received $10,496.27, and John-Char les received, or there was expended for his benefit, the sum of $9,445.29. Charging to the executrices’ account every item with which appellant claims they should be charged, the total sum to be distributed would not be large enough so that either George or John Charles would get $38,000 from their mother’s estate, or bring the estate up to the point where appellant could demand any part thereof. Until that time appellant is not in a position to complain. For the reasons above stated, the decree of the surrogate construing the will should be modified as herein indicated,, and the other decree appealed from should be affirmed. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Crosby, JJ. In accounting proceeding: All concur, except Sears, P. J., and Crouch, J., who dissent and vote for reversal on the law and a remittal of the matter to the Surrogate’s Court for further proceedings, in an opinion by Sears, P. J. In will construction proceeding: All concur, except Sears, P. J., and Crouch, J., who dissent and vote for modification in accordance with dissenting opinion by Sears, P. J.