Collister v. Fassitt
| Decision Date | 05 June 1900 |
| Citation | 57 N.E. 490,163 N.Y. 281 |
| Parties | COLLISTER v. FASSITT. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, appellate division, First department.
Suit by Georgie S. Collister against Amelia A. Fassitt to construe and enforce the will of Gerard B. Scranton, deceased. From a judgment of the appellate division (48 N. Y. Supp. 792) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.
Appeal from judgment of the appellate division, First department, unanimously affirming a judgment of the special term in favor of the plaintiff. The action was brought to construe and enforce the will of Gerard B. Scranton, who died in the city of New York in December, 1888. The provisions in controversy are found in the fourth, fifth, sixth, and eighth paragraphs thereof, and are as follows:
John R. Dos Passos, for appellant.
Hamilton Wallis, for respondent.
BARTLETT, J. (after stating the facts).
This appeal presents the question whether subdivision 4 of the testator's will creates a trust for the benefit of the plaintiff, or a charge upon the residuary estate in her favor, which can be enforced in a court of equity. The courts below have rendered judgment for the plaintiff, and this appeal is from a unanimous decision of the appellate division.
In order to properly construe the various provisions of the will, and to ascertain the intention of the testator, it is necessary to consider the surrounding circumstances that culminated in the testamentary act. The plaintiff was the niece of the testator,-a child of his deceased sister. He took her into his family when 6 years old, and she was about 17 years of age when he died, in December, 1888. He bestowed upon her the same care, maintenance, and education as he gave his daughter, who was a few months older than plaintiff; and she accompanied him and his wife and daughter on several trips to Europe, traveling and sojourning with them there for nearly 5 years. In September, 1888, about 3 months before his death, the testator executed his will, wherein he provided for the plaintiff, his daughter, and his wife, who is the defendant in this action; she having contracted a second marriage with one Fassitt. The scheme of the testator is clear and consistent with the situation which confronted him. He made his wife the executrix of his will, in addition to an executor named. He created a trust fund for the benefit of his mother during life. He directed his wife, out of the property ‘hereinafter given and bequeathed to her,’ which was the residuary estate, to use so much thereof for the support and benefit of the plaintiff as she should from time to time, in her discretion, think best so to do. He created a trust fund of $20,000, the income of which was to be paid to his wife for life, and at her death $1,000 of the income was to be paid to plaintiff until her marriage, and, if she never married, then during her life. He created a trust fund of $50,000, the income of which was to be paid to his wife until his daughter attained the age of 28 years, when the trust terminated and the principal vested in the daughter. He gave the residue of his estate to his wife. The testator's personal estate at the time of his death amounted to about $193,000. It will thus be seen that, so far as plaintiff was concerned, the testator made complete provision for her future support. He confided it to the discretion of his wife, as to amount, during her life; and at her death the plaintiff was to receive $1,000 a year until her marriage, and, if she did not marry, for life. If the intention of this testator is to control, as it surely must, it cannot be assumed that he meant to leave this child of 17, of his own blood, the object of his solicitude for years, to face the world and earn her own living, if it was so ordered by the mere caprice or ill will of his widow. The fourth subdivision of the will, providing for plaintiff's support, and the eighth, devising and bequeathing the residuary estate to the wife, must be read together. The fourth subdivision reads: ‘I direct my wife, * * * out of the property hereinafter given and bequeathed to her by this will, to use so much thereof for the support and benefit of my niece, Georgie S. Collister, as my said wife shall from time to time, in her discretion, think best so to do.’ The eighth subdivision devises and bequeaths to the wife the rest, residue, and remainder of the estate. This is the only devise and bequest to the wife. So there is no uncertainty when we read in the fourth subdivision the direction that ‘out of the property hereinafter given’ to her, she was ‘to use so much thereof for the support and benefit’ of the niece, ‘from time to time,’ as she should, in her discretion, think best. This positive direction of the testator points out the fund, and creates a charge thereon. The amount for support and benefit is to be taken out ‘from time to time.’ The sum necessary is alone left to the discretion of the wife, as it might very well vary according to existing circumstances in the years to come.
It is, however, vigorously argued orally, and in the briefs on behalf of the appellant, that the words of the fourth subdivision of the will are merely precatory, and do not cut down or qualify the words of absolute devise and bequest in the residuary clause. It is also insisted by counsel that to sustain the validity of the clause in question is to overrule a number of cases in this court. It is a trite saying that no will has a brother, and it may also be said that the citation of numerous authorities, in most instances, is of little assistance to the court, as each will must be construed in the light of peculiar surrounding circumstances, the scheme disclosed, the language employed, and the intention of the testator gathered from the general situation. In the case before us the intention of the testator to provide for the continuous support of his niece from his decease until she married or died is absolutely clear. The cases cited in this court do not stand in the way of carrying out this intention of the testator. In none of them is there a state of facts similar to that here presented.
In Foose v. Whitmore, 82 N. Y. 405, the will read: ‘I * * * give and bequeath all my property, real and personal, to my beloved wife, Mary; only requesting her, at the close of her life, to make such disposition of the same among my children and grandchildren as shall seem to her good.’ It is very clear that these are precatory words. The testator gives everything to his wife, absolutely, with a mere suggestion as to the disposition she shall make of the property at the close of her life. The wife, vested with absolute title and living many years, the estate at her death might be necessarily expended or improvidently wasted. The testator's words evidently created no trust or charge.
In Clark v. Leupp, 88 N. Y. 228, the testator gave all his property to his wife; closing with the words, ‘and do appoint my wife * * * my true and lawful attorney and sole executrix of this, my will, to take charge of my property after my death, and retain or dispose of the same for the benefit of herself and children above named.’ It was held that the widow took an absolute title, and that the succeeding words did not limit the gift. In the case cited, we have an absolute gift, followed by words that were held not to disclose the clear intention to cut it down. Banzer v. Banzer, 156 N. Y. 429, 51 N. E. 291. In the case at bar the situation is reversed, and the words creating the trust or charge stand first in the will, and the absolute gift is subject to the same. When construed together, they are perfectly consistent.
The case of Lawrence v. Cooke, 104 N. Y. 632, 11 N. E. 144, is cited by appellant as controlling on this appeal. The grandfather of the defendant, after devising and bequeathing his residuary estate to her,...
To continue reading
Request your trial
-
Bank of Boston Connecticut v. Brewster
...may make a great difference in his intention." 4 W. Page, Wills (Bowe-Parker Rev.) § 30.5, pp. 23-24; see also Collister v. Fassitt, 163 N.Y. 281, 286, 57 N.E. 490 (1900) ("no will has a Keeping in mind that the testatrix' intent is the polestar, this court begins its analysis to determine ......
-
Newhouse's Estate, In re
...of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed. Collister v. Fassitt, 163 N.Y. 281; Robinson v. Martin, 200 N.Y. 159, 164, 93 N.E. 488, 489; Williams v. Jones, 166 N.Y. 522, 533, 60 N.E. 240; March v. March, 186 N......
-
Magavern v. U.S.
...exercise his discretion as directed in the trust instrument. Matter of Rosenberg, 269 N.Y. 247, 199 N.E. 206 (1935); Collister v. Fassitt, 163 N.Y. 281, 57 N.E. 490 (1900); Ireland v. Ireland, 84 N.Y. 321 We also note, though the trustee has not contended otherwise, that the New York Court ......
-
Fabbri's Will, In re
...will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed. Collister v. Fassitt, 163 N.Y. 281, 57 N.E. 490; Robinson v. Martin, 200 N.Y. 159, 164, 93 N.E. 488, 489; Williams v. Jones, 166 N.Y. 522, 533, 60 N.E. 240, 242; March v. M......