Liberman v. Liberman (In re Liberman)

• Decision Date: 10 January 1939
• Citation: 279 N.Y. 458,18 N.E.2d 658
• Parties: In re LIBERMAN. LIBERMAN v. LIBERMAN et al.
• Court: New York Court of Appeals Court of Appeals

279 N.Y. 458

18 N.E.2d 658

In re LIBERMAN.LIBERMAN

v.LIBERMAN et al.

Court of Appeals of New York.

Jan. 10, 1939.

Proceedings in the matter of the petition of Harry Liberman for a review of the action of Herman N. Liberman and another, as trustees under the last will and testament of Isaac Liberman, deceased, in refusing to pay any part of the corpus of the trust established under the will of Isaac Liberman, deceased, for the maintenance and comfort of Harry Liberman, and in refusing consent and approval of Harry Liberman's marriage to Margaret Jones Liberman, and for the removal of Herman N. Liberman and another as executors and trustees of the last will and testament and the trusts established under the last will and testament of the deceased, and for the appointment of other trustees in their place and stead, and for a discovery of assets of the estate of the deceased. From a judgment of the Appellate Division, 253 App.Div. 884, 2 N.Y.S.2d 1019, affirming an order of the Surrogate's Court, 163 Misc. 90, 105, 296 N.Y.S. 523, in favor of Harry Liberman, Herman N. Liberman and others appeal.

Affirmed. Appeal from Supreme Court, Appellate Division, First Department.

Henry Hofheimer, of New York City, for appellants.

Ambrose V. McCall, of New York City, for petitioner-respondent.

LEHMAN, Judge.

The testator, Isaac Liberman, provided in his will that after the death of his wife his residuary estate should be divided into six parts or shares. He had two sons and a daughter. To each he bequeathed beneficial interests in two shares. To his son Herman N. Liberman he gave the two shares absolutely. To his daughter Etta L. Baum he fave one share absolutely and a life interest in a second share with remainder to her issue. The testator named his son Herman and his daughter as his executors and trustees. They were both married and had children. The testator's son Harry Liberman had no children. He had married twice. The testator was an orthodox Jew. Harry Liberman had married women of a different faith and the testator had strongly disapproved. Though he bequeathed to Harry Liberman and his issue beneficial interests in the remaining two shares of his residuary estate, he provided that the enjoyment of such beneficial interest-with the exception of a life interest in one share-should be contingent upon the marriage of Harry Liberman with the consent and approval of the executors and trustees named in the will.

The will provides that:

‘(d) I give, devise and bequeath one of such shares to my Trustees hereinafter named, in trust nevertheless, to collect the rents, issues and profits thereof and to pay the same to my beloved son Harry Liberman, during his lifetime. Upon his death, should he have during his lifetime married with the consent and approval of my beloved wife and the executors and trustees herein named and/or the survivors or successors of them, and should he be survived by any issue of such marriage, then I give, devise and bequeath the principal of such trust fund to the issue of such marriage; in the event that there shall be no such issue, or should he have married without such consent then I give, devise and bequeath the principal of such trust fund to his brother and sister, him surviving and the issue of any deceased brother and sister, the issue of a deceased brother or sister to take collectively the share their parent would have taken.

‘(e) I give, devise and bequeath one of such shares to my trustees hereinafter named, in trust nevertheless, to collect the rents, issues and profits thereof, and to pay the same to my beloved daughter Etta L. Baum and Herman N. Liberman, in equal shares during the lifetime of my son Harry Liberman and/or until the marriage of my said son Harry Liberman as hereafter provided.

‘Upon the marriage of my son Harry Liberman if such marriage is with the consent and approval of my beloved wife and the trustees hereinafter named and/or survivors and successors of them, upon such event such income is to be paid to my beloved son Harry Liberman during the term of his natural life, otherwise such incomeshall continue to be paid to Etta L. Baum and Herman N. Liberman. Should Harry Liberman be survived by an issue of such marriage, contracted as aforestated, then and in that event, I give, devise and bequeath the principal of such trust fund to the issue of such marriage; in the event there shall be no such issue or should he have married without such consent then I give, devise and bequeath the principal of such trust fund to his brother and sister him surviving, and the issue of any deceased brother and sister, the issue of a deceased brother and sister to take collectively the share their parent would have taken.

‘In the event of the death of my beloved daughter Etta L. Baum or my son Herman N. Liberman, during the continuance of this trust then and in that event, I give, devise and bequeath the income of this trust fund to which they may be entitled to receive if living to their issue collectively them surviving.’

Harry Liberman has asked his brother and sister to consent to his marriage to Margaret Jones. They have refused. Then Harry Liberman brought this proceeding to compel them, or other persons to be appointed in their place as executors and trustees, to give such consent. The courts below have held that the provisions of the will of Isaac Liberman which we have set forth, ‘insofar as they require the petitioner, Harry Liberman, to obtain the consent of the testator's wife and the trustees thereinafter named, and/or the survivors or successors of them, to a marriage of Harry Liberman, be and the same hereby are declared to be ineffectual and inoperative and in all other respects in full force and effect.’

A testator of sound mind may, subject to statutory restrictions, not material here, choose the objects of his bounty. He may exclude a child or other descendant from any participation in his estate for sound reason, or because of whim or prejudice which might seem unreasonable to others. He may prefer a prodigal son or even an unrepentant sinner to a son who has been an exemplar and pattern of virtue. No considerations of public policy affect the validity even of a bequest which others might deem a reward for evil conduct in the past. The courts do, nevertheless, at times deny validity to a condition annexed to a testamentary gift where the condition is calculated to influence the future conduct of the beneficiary in manner contrary to the established policy of the State. In this case the courts below have found that the condition attached to full enjoyment of the bequest to Harry Liberman that he shall marry only with the consent of his brother and sister is against such public policy.

A condition calculated to induce a beneficiary to marry, even to marry in a manner desired by the testator, is not against public policy. A condition calculated to induce a beneficiary to live in celibacy or adultery is against public policy. ‘Conditions in general restraint of marriage were regarded at common law as contrary to public policy, and therefore void.’ The rule still prevails in New York. Matter of Seaman's Will, 218 N.Y. 77, 81,112 N.E. 576, 578, L.R.A.1917A, 40, Ann.Cas.1918B, 1138. Conditions in partial restraint of marriage, which merely impose reasonable restrictions upon marriage, are not against public policy. Thus a condition annexed to a bequest designed to prevent the marriage of the testator's daughter with a particular individual is valid and enforcible. ‘Such prohibitions have not only received the sanction of judicial authority, but we think may be justified by sound reasoning.’ Matter of Seaman's Will, supra. The court there cited with approval Jarman on Wills: ‘Conditions not to marry a Papist, * * * or a Scotchman, or not to marry anybody but a Jew have been held good.’ Indeed, such conditions seem to have been sustained whenever challenged. Pacholder v. Rosenheim, 129 Md. 455, 99 A. 672, L.R.A.1917D, 464; Hodgson v. Halford, [1879] L.R. 11 Ch.Div. 959; 2 Jarman on Wills (7th ed.) 1497. In this case the evidence leaves no room for doubt that the conditions annexed to the gift to Harry Liberman and his issue were intended by the testator to restrain his son Harry from marrying any but a Jewess. On that ground the appellants urge that the condition is valid.

Even though extrinsic evidence establishes that the purpose of the condition, imposed by the testator, was to restrain his son from marrying any but a Jewess, yet the condition as written in the will goes further. Only marriage with the consent of executors and trustees who under the will of the testator would profit by refusal of consent,...