Moke v. Norrie

Davis, P.. J.: The sole difficulty of construction involved in this appeal grows out of the use of the word “ executrix” in connection with th,e name of the appellant, Mrs. Moke, in the tenth clause of the will. [130] If'that word had been omitted, there would-be no difficulty whatever in holding that Mrs. Moke was included in the word “ executors,”'as used in that clause, and wherever else used in any provision of the will. Nor could there be in that case any question that she as one of such executors was intended to be appointed one of the trustees and guardians under the will. The word “ executors ” is undoubtedly a proper word of description, of all persons appointed by a will to the duty of executing its provisions. The revisors of the provisions of the Revised Statutes, entitled “ Of granting letters testamentary and of administration” (2 R. S., p. 68), wholly ignore the word “executrix” and use the more strictly proper words “executor” and “ executors,” in speaking of persons of either sex. And-the word “ executrix ” does not appear to have been introduced into our statutes, until by the provisions of chapter 782 of the laws of 1867, the partial - disability of married women to act as executors was removed by the legislature. Nothing is more common in wills, where the wife of a testator is nominated together with other persons to execute the will, to find her name designated in the appointing clause as “ executrix,” and the other per- > sons as executors, and in every other clause of the will all the appointees grouped together under-the common name of “ execu- ■ tors.” That is the case in the present will. In every clause in which reference-is made to the persons'who are to execute the •will, they are denominated “executors,” and the word “executrix” finds no place in the will except-as above pointed out. We think this fact indicates with unerring certainty the intention of the testator-that the word “ executor” should include the appellant wherever it was used by him in the will; because it cannot be supposed that he intended to give her the empty title of executrix, and then divest her of all power by using the word “executors” in ásense to exclude her from the exercise of any of the functions of the office. The true grammatical sense of the first sentence of the tenth •clause of the will, requires that -the words “to this, my last will and testament, and trustees thereunder of my estate,” should be read-in- connection with- both the words “ executrix ” -and “ execu [131] Tors,” precisely as much as it requires that the words “ I appoint,” which commence the sentence, shall be read as well, in connection with the several other persons named in the sentence, and with the words “executors” and “trustees” as with the words .“ my wife ” and “ executrix.” By no other mode of reading- can the several parts of the sentence have the significancy necessary to express the sense obviously intended. It is a forced construction which divides the several parts of the sentence so as to arrest the power given to the wife at the word “ executrix,” and to confine to the several persons named as executors all the parts of the sentence following their nomination. The .effect of this would be to declare the word “executrix” to ■be one of exclusion, used to cut off the wife from any power or authority given in the various clauses of the will to the executors. Such an effect would be a gross injustice to the intention and memory of the testator, who clearly as it seems to us, intended to manifest and express, not only affection, but entire confidence in both the ability and judgment of his wife. We regard the construction of this clause as one wholly dependent upon the intention of the testator, to be gathered from all the parts of the will, and There does not seem to us to be any doubtas to what that intention really was. The eleventh clause of the will appoints the executors (or such of them as might qualify) the guardians of the persons and estates of each and every, the children, the testator should leave, until such children, respectively, attain the age of twenty-one years. It appears in the case that several of these children were, at the time of the publishing of the will, of very tender years. -It caa hardly be possible to suppose that the testator, by using the word “ executors” in the eleventh clause, thereby intended to exclude the mother from the guardianship of his six children during their infancy; and yet that effect must be given to that provision (as it has-been by the learned surrogate), if we construe the word executrix, used in connection with the name of Mrs. Moke, in the tenth clause, as intended to distinguish and exclude her whenever the word “ executors” is used .in the will. If Mrs. Moke, beheld to be-included in the word “ executors,” it needs no argument, to show that she is appointed in common with all who qualify as [132] executors, one of the trustees under the will. But it is regarded as significant of the testator's intention to exclude her from the trusteeship and guardianship, that by the seventh clause he declares: “it shall be lawful for my executors or executor, or others the trustees or trustee for the time being of my veil, with the consent in writing of my said -wife during her life, and after-wards at their or his own discretion, to raise any part or parts not exceeding the whole of one-half of the vested or expectant, or presumptive share of any child or issue under the trust hereinbefore declared, and apply the same for his or her advancement or benefit as such trustees or trustee shall see fit.” The argument is, that if Mrs. Moke be a trustee, her consent and participation as such, will of course, be necessary; and therefore it was inconsistant with her relation as trustee, to require her consent in writing. But the testator, as shown by the use of the words “or others,” in that clause evidently anticipated the possibility that she and the other executors might fail to qualify as executors, and he intended, in any event, to prohibit the raising of the advance during the life of his wife, without her consent in writing; or he designed to express, for more abundant caution, his intention that while his wife lived, whether she were an executor or trustee, or not, the raising of this advancement should depend altogether upon her consent in writing. We fail to see the force of this fact as an argument against the intention that she should act as trustee. But the principal point is made upon the fact that if trustee, she would to some extent be a trustee for her own benefit.. If this fact were fatal to a trust, its effect we think would be limited in ¿this case to the portion which is for her own special benefit. But as the law is now settled, a cestui que trust, is not absolutely excluded from occupying the relation of trustee for his own benefit, and especially is this so where he is but one of several trustees. (Wetmore v. Truslow, 51 N. Y., 338; Amory v. Lord, 5 Selden, 103; Tiffany v. ClarJc, 58 N. Y., 632; Lewin on Trusts, 6th Ed. 57; Parsons on Trusts, 2 Ed. § 59.) “Where the administration of a trust is vested in co-trustees, they all form as it were, but one collective trustee. They must therefore execute the duties of their office in their joint capacity” (Lewin on Trusts, 227.) [133] We are of the opinion therefore, that the learned surrogate erred in his construction of the will and that the decree must be so modified as to declare Mrs. Moke to be one of the trustees and guardians under the will, with the same powers and to the same extent as the other executors who qualified, and with this modification, affirmed. The costs of the several parties to the appeal to be paid out of the fund. The order to be settled by the presiding justice. Daniels and Brady, JJ., concurred. Ordered accordingly.