Fabbri's Will, In re

• Decision Date: 10 January 1957
• Citation: 159 N.Y.S.2d 184,2 N.Y.2d 236,140 N.E.2d 269
• Parties: , 140 N.E.2d 269 In re FABBRI'S WILL. In the Matter of the Accounting of UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee under the Will of Alessandro Fabbri, Deceased, Appellant. James C. Clark, Jr., et al., Appellants; Henry G. Seipp, as Administrator C. T. A., D. B. N. of the Estate of Egisto P. Fabbri, Deceased, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 184

159 N.Y.S.2d 184

2 N.Y.2d 236, 140 N.E.2d 269

In re FABBRI'S WILL In the Matter of the Accounting of UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee under the Will of Alessandro Fabbri, Deceased, Appellant James C. Clark, Jr., et al., Appellants; Henry G. Seipp, as Administrator C. T. A., D. B. N. of the Estate of Egisto P. Fabbri, Deceased, et al., Respondents.

Court of Appeals of New York.

Jan. 10, 1957.

Louis S. Auchincloss and Lawrence Morris, New York City, for appellants.

James D. Ouchterloney, Eben E. Rand and Alexander J. Holland, New York City, for respondents.

BURKE, Judge.

This is a proceeding for an accounting involving the construction of the will of Alessandro Fabbri, who died on February 6, 1922, a resident of Bar Harbor, Maine.

The will was executed on April 13, 1920. At that time the testator was an unmarried man with two brothers and four sisters. One of his brothers and all of his sisters were residents of Florence, Italy. A brother, Ernesto, his wife, Edith, and testator were residents of the State of Maine. In his will, after providing for the payment of all debts, the testator made a bequest of $20,000 to Ernesto and created a trust for the benefit of one Charles Cushing, a friend. Cushing was to receive the income of the fund up to $2,400 a year. Annual income in excess of that amount and the entire principal, upon Cushing's death, were made parts of the residuum of the estate. The residue was to be divided into two separate trust funds, income payable to Ernesto and Edith during their respective lives. Upon the death of Ernesto the principal of the trust created for his benefit was to be distributed among three of testator's sisters in Florence or to their surviving children if any of the sisters predeceased the testator. Upon Edith's death the principal of her trust was to be distributed pursuant to article Sixth of the will, which reads as follows: 'Sixth * * * upon the death of my brother's wife, Edith S. Fabbri, either before or after me, the principal of the trust fund created for her benefit, shall be distributed to and among such issue of Teresa F. Clark, daughter of the said Edith S. Fabbri, as I may designate in writing.' Edith died on December 17, 1954. At that time her daughter, Teresa F. Clark, had two children, James Cameron Clark, Jr., and Edith Clark Milliken, the appellants here. At no time after the execution of the will did testator make any further designation as to the remainder of the trust.

Respondents, representatives of testator's heirs at law and next of kin, contend that the provision under consideration unmistakably reveals that the testator did not intend to dispose of the remainder interest of the trust by his will but merely indicated that such disposition might be accomplished by a subsequent additional instrument. They conclude that since no additional instrument was ever executed, the entire remainder must pass by the rules of intestate succession.

The trustee brought this proceeding to determine whether the principal of the trust was to be divided between the issue of Teresa Clark or was to pass, as in intestacy, to representatives of the testator's next of kin.

At the time of his death testator was domiciled in Maine and, since no contrary intent appears in the will, the law of that State determines the validity and effect of the will with respect to the disposition of personal property. 1 Davids on New York Law of Wills, § 452; Decedent Estate Law, Consol.Laws, c. 13, § 47; Matter of Gifford's Will, 279 N.Y. 470, 474-475, 18 N.E.2d 663, 664. As to that portion of the trust assets consisting of an interest in real property situated in New York, the laws of New York State apply. Decedent Estate Law, § 47. As is conceded by the respondent, however, as far as the questions on this appeal are concerned, there is no conflict between the law of Maine and that of New York.

It can be stated at the outset that decisions such as Smith v. Floyd, 140 N.Y. 337, 35 N.E. 606, cited by the appellants, deal exclusively with imperative powers of appointment and have no pertinency to this case. In the case at hand, the testator did not grant a power to a third person by which a future estate might be created. Since a will is inoperative and wholly ineffective until the death of the testator, after the execution of this will, the testator's authority to dispose of all of his property remained unfettered. Towler v. Towler, 142 N.Y. 371, 374-375, 36 N.E. 869, 870.

There remains for our consideration the sole question: who is entitled to receive the principal of the trust for Edith A. Fabbri?

The prime consideration here as in all construction proceedings is the intention of the testator as expressed in the will. All rules of interpretation are subordinated to the requirement that the actual purpose of the testator be sought and effectuated as far as is consonant with principles of law and public policy.

This intent, as we have often said, must be gleaned not from a single word or phrase but from a sympathetic reading 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, 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. March, 186 N.Y. 99, 103, 78 N.E. 704, 705, 8 L.R.A., N.S., 180.

As this court recently stated in Spencer v. Childs, 1 N.Y.2d 103, 106-107, 150 N.Y.S.2d 788, 789, which also involved a problem of construction: 'Cases such as the present and Matter of Daly('s Will), 1 N.Y.2d 100, 150 N.Y.S.2d 785, also decided today * * * well illustrate the aptness of Judge Learned Hand's wise and trenchant observation that courts should be wary of making 'a fortress out of the dictionary', since there 'is no more likely way to misapprehend the meaning of language * * * than to read the words literally, forgetting the object which the document as a whole' seeks to achieve. Cabell v. Markham, 2 Cir., 148 F.2d 737, 739; Central Hanover Bank &amp Trust Co. v. Commissioner, 2 Cir., 159 F.2d 167, 169. 'A word * * * may vary greatly in color and content' according to the intent of its author and the circumstances under which it is used. Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372.'

If the court upon reading the will in this setting discerns a dominant purpose or plan of distribution, the individual parts of the will must be read in relation to that purpose and given effect accordingly. Roe v. Vingut, 117 N.Y. 204, 212, 22 N.E. 933, 934. This is true despite the fact that a literal reading of the portion under construction might yield an inconsistent or contradictory meaning because of the use of awkward language inadvertently or carelessly chosen. Haug v. Schumacher, 166 N.Y. 506, 513, 60 N.E. 245, 246; Williams v. Jones, 166 N.Y. 522, 533, 60 N.E. 240, 242, supra. As this court pointed out in an early opinion: 'If we can see that the inapt or careless use of language by the testator has created the difficulty in ascertaining his intention, but, neverthless, feel certain as to what he meant, from reading the whole instrument in connection with the clause in question, we may subordinate the language to that meaning.' Matter of Miner's Will, 146 N.Y. 121, 130-131, 40 N.E. 788, 790. By application of these principles to the language before us, we have concluded that it was the testator's purpose to make a gift of the remainder of the Edith Fabbri trust to the issue of Teresa Clark. As we read the particular language and the will, the nomination of that class as the group entitled to the remainder was unconditionally made; only a designation by way of apportionment was reserved for future determination.

The will reveals a general plan or design to distribute thoroughly and completely Alessandro's entire estate. His brother, Ernesto, and Ernesto's wife, Edith, were to be the recipients of the principal gift. Upon their deaths half of the residuary estate was to pass to the three married sisters in Florence, Italy, members of the Italian branch of the family, and the other half to the posterity of Ernesto and Edith, the American branch. The remaining brother, Egisto, and an unmarried sister, both of Florence, were not mentioned. As evidenced by the will, Ernesto and his wife Edith were the foremost objects of the testator's bounty. It is no more than natural to assume that their progeny were held in high favor by Alessandro, who was himself unmarried, and that they too would be natural objects of his generosity when he made his testamentary disposition. Although Teresa, the only child of Edith and Ernesto, received no direct gift in the will, testator undoubtedly considered that she would benefit by the substantial gifts to her parents. As to Teresa's issue, however, the grandchildren of Edith and Ernesto, testator made specific provision by designating them recipients of the remainder of the Edith Fabbri trust. The gift was accomplished in article Sixth of the will. The wording 'such' and 'as I may designate', upon which respondents place such great strees, is not inconsistent with the gift. That language indicates only the reservation of a right to prefer certain members of the issue. The reservation is understandable when viewed in conjunction with the membership of the Clark family at the time of the making of the will. When the will was written Teresa Clark had but one child and he was then under two years of age. Under ordinary circumstances this class could be expected to increase during testator's lifetime. It was entirely possible that over the years some of the grandnephews and grandnieces might assume different places in the affection of the testator. Aware of this possibility, testator desired to allow their personal relationships to develop while at the same time preserving the inheritance for the grandnephews and...