Herzog v. Title Guarantee & Trust Co. of New York City

• Decision Date: 18 December 1903
• Citation: 69 N.E. 283,177 N.Y. 86
• Parties: HERZOG v. TITLE GUARANTEE & TRUST CO. OF NEW YORK CITY et al.
• Court: New York Court of Appeals Court of Appeals

177 N.Y. 86

69 N.E. 283

HERZOG

v.TITLE GUARANTEE & TRUST CO. OF NEW YORK CITY et al.

Court of Appeals of New York.

Dec. 18, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Fanny McComb Herzog against the Title Guarantee & Trust Company of New York City and others. From a judgment of the Appellate Division (83 N. Y. Supp. 548) modifying and affirming a judgment of the Special Term construing the will of James Jennings McComb, plaintiff and Edward Rayne Herzog appeal. Reversed.

William W. MacFarland, Robert W. B. Elliott, and Robert L. Harrison, for appellant Fanny McComb Herzog.

Edward M. Scudder, for appellant Edward Rayne Herzog.

John Notman, for respondents Title Guarantee & Trust Company and others.

Robert E. Deyo, for respondent Jennings Scott McComb.

MARTIN, J.

This action was for the construction of the will of James Jennings McComb, who died on the 31st of March, 1901, leaving a last will and testament, to which there were three codicils. Without referring to or discussing the provisions of the will or codicils which have no necessary bearing upon the question before us, we shall only call attention to those relating to the question under consideration. The questions on this appeal involve the construction and effect of the fifteenth paragraph of the will, as changed or modified by the ninth provision of the third codicil thereto.

After making many other provisions for intended recipients of his bounty, he provided for his issue, immediate and remote, by the fifteenth clause of his will. He thereby gave, devised, and bequeathed all the rest, residue, and remainder of his estate to his executors and trustees, and their successors, to hold, invest, maintain, and manage during the lives of those two of his children who, surviving him, should be the youngest at the time of his death, in trust, however, and for the purpose, among others, of paying from the income of the residuary estate not otherwise disposed of the sum of $6,000 per annum to each of his four children, Mary Alice, Fanny Rayne, Lillie, and Jennings Scott, and upon the termination of the trust to transfer and convey said residuary estate in equal parts, share and share alike, to his children above named, or to their respective heirs, legatees, devisees, next of kin, executors, administrators, or assigns. The ninth clause of the third codicil was as follows: ‘It is my will, and I hereby direct, that in case my daughter Fanny shall marry Mr. Louis Herzog, the provision which she shall enjoy from my estate shall be as follows: An annuity of fifteen ($15,000) thousand dollars per year shall be paid to her, so long as she shall live, free and clear from any enjoyment or interference therewith on the part of her husband. Upon her death the sum of three hundred ($300,000) thousand dollars shall be divided between her children, who may survive her, and the issue of any child of hers, who may have previously died, such issue to take the parent's share. The principal so to be divided upon her death shall be three hundred ($300,000) thousand dollars.’ The plaintiff remained unmarried until about nine months subsequent to the death of the testator, when she was married to the Mr. Louis Herzog therein mentioned and referred to.

Upon the argument and in the briefs of counsel a number of very interesting and important questions were elaborately and exhaustively discussed in a manner evincing great industry, research, and ability upon the part of the learned counsel for the respective parties. Many of those questions, however, we shall not discuss or determine, but shall confine our examination to the question passed upon by the courts below which we think is decisive and controlling.

On the trial the learned Special Term held that the ninth clause of the third codicil, construed in connection with the fifteenth article of the will, was illegal, inoperative, and void. Upon appeal to the Appellate Division, that learned court held to the contrary, and reversed the judgment upon the ground that that provision of the codicil was valid. We concur in the opinion of the learned Appellate Division so far as it states that ‘it was manifestly the intention of the testator to modify the third and fourth subdivisions of the fifteenth clause or article in the event that Fanny should marry Herzog, by providing that she should then receive fifteen thousand dollars per annum as a life annuity, instead of a share in the income of the residuary estate during the continuance of the trust, and in the principal thereof at the termination of the trust, and that upon her death her issue should receive three hundred thousand dollars.’ The will and codicil are to be taken and construed as parts of one and the same instrument, and the dispositions of the will are not to be disturbed further than are necessary to give effect to the codicil. Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177;Goodwin v. Coddington, 154 N. Y. 283, 48 N. E. 729. Therefore, in ascertaining the effect of the ninth clause of the codicil upon the interest of the plaintiff under the fifteenth clause of the will, both instruments must be read and interpreted as one. From them the intention of the testator must be ascertained. The intent to be discovered is not whether he intended to make a valid disposition of his estate, but what provisions he in fact intended to make. When that is found, it is for the court to determine whether such intended provisions are valid or otherwise. Colton v. Fox, 67 N. Y. 348, 351.The question of intent may relate to the mode of administration and the character of the gift, as well as to the amount or the person to whom it is made. The duty of the court is not to make a new will or codicil to carry out some supposed but undisclosed purpose, but to ascertain what the testator actually intended by the language employed by him, when properly interpreted, and then to determine whether such intended provisions are valid or otherwise. The duty of the court is to interpret, not to construct; to construe the will and codicil, not to make new ones. Tilden v. Green, 130 N. Y. 29, 51,28 N. E. 880,14 L. R. A. 33, 27, Am. St. Rep. 487.

All the valid provisions of the will for the benefit of the testator's issue, either immediate or remote, are contained in the fifteenth clause. Although, as to other gifts by his will he had adopted different methods for their administration, yet, when it came to the bulk of his estate, and to the provisions for his children and their issue, he plainly and purposely provided that such provisions should be administered through the instrumentality of a trust. Obviously his purpose was to suspend the power of alienation for the longest period permissible under the law. That intent he plainly and expressly states in the fifteenth clause of his will. Thus the dominant purpose of the testator, so far as gifts to his children and their issue were concerned, was to provide for the inalienability of their shares for the longest period possible. There is nothing in the ninth clause of the codicil indicating or expressing any other purpose as to the share given the plaintiff and her issue in case of her marriage to Herzog, but the provision that in that case she should receive $15,000 a year, and $300,000 should be divided between such of her children and their issue as should survive her, discloses that the same general intent of inalienability was to be continued as to the share provided for the plaintiff by such ninth clause.

A doubt may exist as to the sufficiency of the codicil to cut down the absolute gift to the plaintiff contained in the will, by reason of the indefiniteness and uncertainty of the language employed. The rule is that an absolute gift by a will cannot be cut down by a later provision unless the intention to do so is expressed in language as plain, definite, and certain as is used in making the original gift. Banzer v. Banzer, 156 N. Y. 429, 51 N. E. 291. We are, however, inclined to the opinion that the language of the codicil is sufficiontly plain to show an intention on the part of the testator to modify his original gift to the plaintiff as to the amount of the income she should receive, between whom the remainder of the income should be divided, between whom the corpus of the fund should be ultimately divided, the proportion or amount thereof they should each receive, and the time when such division should be made as to the share going to the plaintiff and her children or their issue. Therefore, just so far as the codicil modifies or changes the provisions of the will, it should be held to be effective. Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177.

In considering the effect of the codicil upon the provisions of the will to which it relates, our attention must be directed to the provisions for the disposition of that portion of the estate, and the method in which it is to be administered or divided between its intended recipients. If the codicil, when construed in connection with the fifteenth clause of the will, is illegal and contrary to the law in either of those respects, it is void, and should not be given effect. After eliminating from the fifteenth clause of the will the invalid provisions therein, the testator, in effect, gave the remainder of the income from his residuary estate not specially dedicated to other purposes to his children equally, share and share alike; and upon the termination of the trust each child, or her issue, successors, or representatives, was to be paid one-fourth of such residuary estate. This provision was not revoked, nor was it even modified, by the codicil, unless a condition should arise which might be either precedent or subsequent; and upon the happening of that condition the only modification of the gift in the fifteenth clause was to change or reduce the amount the plaintiff should receive from the income, and to give her children $300,000 instead of the share...