Horton v. Cantwell

• Decision Date: 24 January 1888
• Citation: 15 N.E. 546,108 N.Y. 255
• Parties: HORTON et al. v. CANTWELL et al.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 255

15 N.E. 546

HORTON et al.

v.CANTWELL et al.

Court of Appeals of New York.

January 24, 1888.

Appeal from general term, supreme court, First department.

Action by Carrie I. Horton, an infant, by Leslie C. Wead, her guardian al litem, to obtain a construction of the will of her mother, Adaline W. Horton. Testatrix died March 28, 1880, leaving a will dated January 2, 1878, the executors named in which were Myron B. Horton, the husband, William D. Brennan, and William P. Cantwell. Brennan died, and, the other two executors differing about the will, the husband brought suit, as executor, to construe it, but the suit was abated by his death in 1881. The present plaintiff then brought suit, and the defendant Cantwell, as surviving executor, and the defendant church, each demurred to the complaint. The demurrer was sustained, and judgment given dismissing the complaint upon the merits, with costs out of the fund. Plaintiff appealed, and the general term affirmed the judgment upon the merits; but, as to costs, directed that the costs, both at special and general term, be paid by the plaintiff personally. Plaintiff again appealed. The will, in general terms, after a bequest to the husband, and a direction to the executors at all times to take care of the graves of testatrix's relatives in Malone, gives the residue to the executors in trust ( a) to receive the income during the life of her daughter, the plaintiff; ( b) during her minority, to apply so much thereof as may be necessary for her support; and, ( c) after her minority, to pay over to her the rents and profits. It then directs: (4) ‘If my said daughter shall at her decease leave issue, then, from and after her decease, I give, devise, and bequeath the whole of said real and personal property to her children in equal proportions, share and share alike, if all her children then shall be living, or if none of them shall have died, leaving issue, at the time of my dealth; but if any of her children shall have died, leaving issue, then such issue to take the share or part of such property and estate which the parent of such issue would have taken by this will f living at the time of my death.’ (5) ‘But, if my said daughter shall die without leaving issue, then and in that case I order and direct my said executors immediately to sell and dispose of all my real estate and property then remaining, and convert the same and every part thereof into money and available personal securities, in their discretion; and I give and bequeath from and out of the moneys realized,’ etc., the sum of $5,000 to her executors, as trustees; the interest thereof to be paid by them for the relief of the poor and destitute of Malone village: providing that said $5,000 should constitute a ‘perpetual fund,’ and that the trustees should select the beneficiaries. (6) ‘And if my said daughter shall die without leaving issue, as aforesaid, I give and bequeath all the moneys and securities which shall be realized and derived by my said executors from the sale or sales of my real estate;’ and all other personal property to the First Congregational Society of the town of Malone, which is a religious society.

The plaintiff has the capacity to maintain this action. ‘The validity of any actual or alleged devise or will of real estate may be determined by the supreme court, in a proper action for that purpose, in which all parties interested, or who claim an interest in the question, may be made parties; and such action may be brought by any heir at law of the actual or alleged testator,’ etc. Laws 1879, c. 316. This act was not repealed by the repealing act of 1880, (Laws 1880, c. 245, § 3, subd. 9; also section 4.) See 3 Rev. St. (Banks' 7th Ed.) 2284, note. Under the third clause of the will, the executor holds the entire estate in trust for the benefit of the plaintiff. The jurisdiction of equity over trusts gives it authority to construe wills whenever necessary of equity over trusts gives it authority to construe wills whenever necessary to guide the action of the trustee. Any person claiming an interest in the porsonal estate of the testator, either as legatee or under the statute of distributions, may maintain a suit to settle the construction of the will, and obtain his share. Wager v. Wager, 89 N. Y 161. As to the $5,000 attempted to be given to the poor of Malone, and one-half of the residue given to the church, there is an intestacy to which plaintiff is entitled under the statute of distributions. The trust in the third clause gives the estate in trust to collect the income, and apply so much as may be necessary to her support during her minority; making no provision for the ultimate disposition of the accumulated surplus. The only inference is that such surplus must be added to capital. Such a trust is illegal and void. Pray v. Hegeman, 92 N. Y. 508; 1 Rev. St. 726, §§ 37, 38; Id. 773, § 3; Kilpatrick v. Johnson, 15 N. Y. 326;Manice v. Manice, 43 N. Y. 303. The attempted bequest to the poor of Malone in perpetuity, by the fifth clause, is void. Adams v. Perry, 43 N. Y. 487. So, also, is the one-half of the residue sought to be given to the church by the sixth clause. Laws 1860, c. 369. As to those amounts, Mrs. Horton died intestate. There is no residuum for them to fall into. The estate thus undisposed of descended at once to the plaintiff. Kerr v. Dougherty, 79 N. Y. 328;Lefevre v. Lefevre, 59 N. Y. 435;White v. Howard, 46 N. Y. 144, 168, 169; 2 Rev. St. 729, § 22, (7th Ed.) p. 2182. The contingent interests of any unborn children of the unmarried plaintiff in no way interfere with this result. The interests are before the court, and a decree may be made to bind them. Brevoort v. Brevoort, 70 N. Y. 136;Mead v. Mitchell, 17 N. Y. 210. But, if not, plaintiff has the fee, subject only to be deflected by their birth, and, if she produces any, her title may open to take them in. Chrystie v. Phyfe, 19 N. Y. 345. But, as against the executor and the church, her claim is perfect. Neither of them have any title. White v. Howard, infra. Under this title she could convey a good title in her life-time to the $5,000 poor fund and the residuary half. In re Railway Co., 11 N. E. Rep. 492. The only children whose rights, under clause 4 of the will, could interfere with plaintiffs' right to this fee, are those born before the death of the testatrix, and there are none. The words ‘my death’ twice occur, and the court in each instance made them read, ‘her death.’ This was erroneous. The words occur in two different places, close together, are of plain import, deliberately used, and force should have been given to them. They are precisely in line with the usual rule of construction of provisions relative to the death of issue. Embury v. Sheldon, 68 N. Y. 227;Livingston v. Greene, 52 N. Y. 118;Wolfe v. Van Nostrand, 2 N. Y. 436. The judgment of the general term as to costs must be reversed. The order upon the plaintiffs' own appeal, no one else appealing, transferring the costs from the fund to a personal charge upon plaintiffs, was beyond its power. Code, § 1317. Kelsey v. Western, 2 N. Y. 500. There was no misjoinder of parties. The general guardian and guardian ad litem were one and the same person, and he had, as general guardian, capacity to bring any action concerning the infant's property rights and rights of support. Cagger v. Lansing, 64 N. Y. 418.

The court has no jurisdiction to pass upon the provisions of the will in question. To put a court of equity in motion, there must be an actual litigation in respect to matters which are the proper subjects of the jurisdiction. Chipman v. Montgomery, 63 N. Y. 230. Carrie J. Horton has no standing in court as a plaintiff, not having any interest in any question which can be litigated in the action. Clause 3 of the will is the settled formula for making minority and life provisions for intended beneficiaries, and is valid. Moore v. Hegeman, 72 N. Y. 376;Barbour v. De Forest, 95 N. Y. 13. There can be no question here of ‘doubtful construction’ as to the ‘powers of the executors,’ or ‘as to the extent and character of the devise in trust to them.’ Carrie J. Horton takes no ‘estate,’ but only certain benefits, under the will. The whole legal and equitable title is vested in the executors. Amory v. Lord, 9 N. Y. 411;Knox v. Jones, 47 N. Y. 396; 2 Rev. St. 1109, § 73, (Banks, 6th Ed.) She cannot come into court to litigate questions touching disposition of the estate not to take effect till after her death; nor can she attack the validity of clause 3. To entitle her to be heard, she must recognize the existence of the trust, and ask for its enforcement. If she alleges in intestacy, then, as heir at law and next of kin, she must assert her rights directly by proper action. Nor can the action be maintained for an accounting as to the personalty. Chipman v. Montgomery, 63 N. Y. 230, citing Post v. Hover, 33 N. Y. 593;Bowers v. Smith, 10 Paige, 193;Parks v. Parks, 9 Paige 120;Onderdonk v. Mott, 34 Barb. 111;Monarque v. Monarque, 80 N. Y. 320;Marlett v. Marlett, 14 Hun, 313. In clause 4 the use of the word ‘my’ in two places is an evident clerical error. If allowed to stand, it would appear that testatrix anticipated the possibility of a child then of 10 to 12 years of age, having issue before testatrix's death. The word ‘her’ should be inserted in place of ‘my.’ A word may be supplied by construction. Hall v. Thompson, 23 Hun, 334. A word may be rejected. Lottimer v. Blumenthal, 61 How. Pr. 360. To effectuate the intention of the testator, words and limitations may be transposed, supplied, or rejected. Roseboom v. Roseboom, 81 N. Y. 360;Sutherland v. Gesner, 27 Hun, 283, 284. To sustain the validity of the disposition, and carry out the manifest intention of the testator, the words ‘may leave,’ were read, ‘may have.’ Du Bois v. Ray, 35 N. Y. 162. ‘And’ was inserted in place of ‘or.’ O'Brien v. Heeney, 2 Edw. Ch. 242. ‘Surviving...