In re the Estate of Wittner

Froessel, J. Petitioner-appellant, the surviving husband of Raia Wittner, has brought this proceeding for a determination pursuant to section 145-a of the Surrogate’s Court Act, and subdivision 8 of section 18 of the Decedent Estate Law, of the validity and effect of his election to take an intestate share of her estate against the provisions of her will. The courts below have determined that appellant is not entitled to take or receive absolutely his full intestate share, which would be one third of the estate, since decedent had two children by a prior marriage. After gifts of jewelry, household furniture and other effects, Raia Wittner’s "will bequeathed $15,000 in trust for her daughter, and then divided the residue into three equal parts. The first part she gave outright to her son, the second she gave in separate trust for her daughter, and the third in separate trust for appellant. The will granted exceedingly broad discretionary powers to the executors and trustees in the administration of the estate and the trusts, including the following in paragraph “ Eleventh ” thereof: “ (o) The Trustees are authorized, in their sole and absolute discretion, in the event of any need on the part of any of my children, or of my husband, occasioned by misfortune, sickness or by any other reason whatsoever, to pay to or use, apply or expend for the use and benefit of any of my said children or of my husband, the corpus of any trust fund held for the benefit of said child or of my husband to such extent and as often as said Trustees, in their sole and absolute discre [464] tian, may determine to be adequate to provide for the reasonable needs and comforts of any of my said children or of my husband during such period or periods of need.” (Emphasis supplied.) We are of the opinion that this clause had the effect of giving appellant an absolute right of election (Matter of Matthews, 279 N. Y. 732; Matter of Schmidt, 282 N. Y. 787; Matter of Sheppard, 189 Misc. 367, 370). Certainly by this unambiguous language the testatrix could not have meant, as the courts below have found, that a trust fund could only be invaded for the benefit of its particular income beneficiary. If the testatrix had intended that result, she would never have used the words ‘‘ any need on the part of any of my children ” or “ for the use and benefit of any of my said children ” or “ for the reasonable needs and comforts of any of my said children ”. The son was not the income beneficiary of any trust, and since the testatrix obviously intended that the invasion clause was to be for his benefit, as well as for that of the daughter (i.e., “ any of my children ”) as well as appellant, she could not have meant that the son was to be limited to invading the corpus of his own nonexistent trust. The testatrix must have intended-that the son be permitted to invade someone else’s trust — namely, the trust of appellant and the two trusts of the daughter. This conclusion is all the more compelling because of the use in the invasion clause of the words “ the corpus of any trust fund held for the benefit of said child ”. The use of the singular “ child ” here demonstrates that the testatrix recognized that a trust had been set up for only one of her children — i.e., the daughter. Her language there was precisely descriptive, and significantly different from the language in other parts of the clause where the plural “ my children ” is used. The inference is unmistakable that the testatrix intended that the two trusts set up for her daughter and the one for appellant should all be subject to invasion in the event of sickness or other misfortune falling upon the daughter, the son, or appellant. The courts below have held that appellant is restricted to the exercise of the limited right of election under paragraph (f) of subdivision 1 of section 18 of the Decedent Estate Law, subject to a future accounting proceeding in which the extent and valuation of the estate property will be determined. In this they are in error, because the trust referred to in said section must be [465] deemed to refer to a substantially beneficial trust and not the kind of illusory disposition which exists here (Matter of Matthews, supra). To hold otherwise would be to allow the destruction, in whole or in part, of the trust corpus which the statute clearly contemplates shall be the basis of appellant’s income during life; or, to put it otherwise, would permit appellant’s rights to “ ‘ be whittled down by the ingenuity of the draftsman of a will or by the design of the [testatrix] to deprive the [appellant] of [his] lawful rights ’ ” (Matter of Curley, 245 App. Div. 255, 257, affd. 269 N. Y. 548), contrary to the well-recognized doctrine that section 18 must be liberally construed in favor of the surviving spouse in order to fulfill “ the evident purpose of the Legislature that a surviving spouse should retain the right to claim his or her full intestate share, in spite of any will, unless the instrument should provide substantial equivalents ” (Matter of Byrnes, 260 N. Y. 465, 470, 474, reargument denied 261 N. Y. 623). Courts have no right to vary or modify the terms of a will to bring a gift to the spouse within the provisions of section 18. As we said in Matter of Durand (250 N. Y. 45, 54), ‘‘ In declaring a testator’s intention * * * courts áre limited to the words which the testator, himself, has used in his will.” And at page 55, “ Even if we thought that [the testator] would have followed the interpretation which the lower courts have put upon this will, the fact is he did not do so, and the courts cannot reconstruct wills in accordance with the near intention of the maker. * * * No power of revision of wills is intrusted to the courts.” And in Manion v. Peoples Bank of Johnstown (292 N. Y. 317, 321), “ Courts are not at liberty to inquire as to a testator’s understanding or appreciation of the legal implications of words that were selected for him by a draftsman of his will.” It follows that appellant has an absolute right of election under subdivision 1 of section 18. The order of the Appellate Division and the decree of the Surrogates’ Court should be reversed, and the matter remitted to the Surrogates’ Court for further proceedings not inconsistent with the opinion herein, with costs payable out of the estate to all parties appearing separately and filing separate briefs.