Oliver v. Wells

• Decision Date: 18 November 1930
• Citation: 254 N.Y. 451,173 N.E. 676
• Parties: OLIVER v. WELLS et al.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 451

173 N.E. 676

OLIVER

v.WELLS et al.

Court of Appeals of New York.

Nov. 18, 1930.

Action by Anna Gertrude Oliver against Katherine M. Wells and others. From a judgment of the Appellate Division (229 App. Div. 356, 243 N. Y. S. 328) affirming by a divided court a judgment of the Special Term in an action for the construction of a will, plaintiff and defendants cross-appeal.

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

Wesley H. Maider, of Gloversville, for plaintiff-appellant.

Fred. Linus Carroll and John M. Carroll, both of Johnstown, for appellant John E. Wells.

Alfred D. Dennison, of Johnstown, for appellants People's Bank of Johnstown and others.

Henry S. Manley, of Delmar, and Claude T. Dawes, of Albany, for appellant Katherine M. Wells.

F. Law Comstock, of Gloversville, for respondents-appellants James Oliver, 2d, et al.

CARDOZO, C. J.

The action is one for the construction of a will.

David A. Wells died in May, 1928, leaving a will admitted to probate in July, 1928. By the seventh subdivision thereof he gave his residuary estate in trust for his wife, Katherine M. Wells, during her life, the principal on her death (after the deduction of a legacy for the care of cemetery lots) to be divided into fifteen equal parts. A one-fifteenth part of the income was thereupon to be paid to a nephew, John E. Wells, for life, ‘providing he and my sister [the plaintiff, Anna Gertrude Oliver] consent and agree to the use and occupancy of the real estate and the payment of the income of the Chicago & Northwestern Railway stock to my wife as hereinbefore provided.’ Another fifteenth part was to be paid for life to his wife's niece, Gertrude S. Ackerknecht. A twelve-fifteenths part was to be paid to his wife's grandniece, Gertrude Katherine Ackerknecht, and a fifteenth part to another grandniece, Mary Ackerknecht. ‘In the event of the death of any or either of the said beneficiaries, the income from the share or interest of said beneficiary’ was to be paid to the survivors, and not till ‘the death of the last surviving beneficiary’ was the principal to be released from the trust and disposed of in accordance with the eighth subdivision.

By the eighth subdivision he gave his residuary estate not otherwise disposed of to his sister Anna Gertrude Oliver, ‘upon condition, however, that she and said John E. Wells consent to the use of the income of the Chicago & Northwestern Railway stock and the use of the real estate by my wife as hereinbefore provided.’ In the event that his sister and nephew did not so consent, he gave this residue to his wife.

1. The trusts established by the testator after the trust for the benefit of his wife are unlawful in so far as they provide that upon the death of any of the beneficiaries, the income from the share of the one so dying shall be paid to the survivors. The effect of that provision might be to continue the trust in respect of any share for a period of four lives. No reason is perceived, however, why the trusts should fail in their entirety. The primary trusts for the benefit of nephew, niece, and grandnieces may stand, and the secondary trusts for the survivors be severed and rejected. The principles governing this process of division have been expounded so fully in recent cases that there is no occasion to restate them. Matter of Horner's Will, 237 N. Y. 489, 143 N. E. 655;Matter v. Trevor's Will, 239 N. Y. 6, 145 N. E. 66;Matter of Gallien, 247 N. Y. 195, 160 N. E. 8;Matter of Durand's Will, 250 N. Y. 45, 164 N. E. 737. In this instance, indeed, there is a striking absence of the circumstances that becloud intention and embarrass choice. The problem of severance is at times obscure and baffling when the consequence of excision is to accelerate a remainder bequeathed to some one other than a residuary legatee. Even in such circumstances acceleration is permitted when the plan and purpose of the will are better served thereby than they are by total sacrifice. Kalish v. Kalish, 166 N. Y. 368, 59 N. E. 917; Matter of Horner's Will, supra. Here these queries and perturbations are stilled and set at rest. The remainder, though accelerated in enjoyment upon a severance of the trusts, will pass to the same person who would take under the will if the trusts, instead of being severed, were obliterated altogether. By the eighth subdivision, the sister, or, in a certain contingency, the wife, is to receive everything, real or personal, not otherwise disposed of. In such circumstances there is not even a plausible basis for the argument that the testator would have been unwilling, if he had known that some of his trusts would fail, to accelerate the remainder. In legal effect and almost in so many words he has told us by his will that he wished this very thing to happen if other gifts should lapse. Cruikshank v. Home for the Friendless, 113 N. Y. 337, 354,21 N. E. 64,4 L. R. A. 140; Lamb v. Lamb, 131 N. Y. 227, 234,30 N. E. 133. There is indeed a technical rule, reluctantly enforced by courts when tokens are not at hand to suggest an opposite intention, that a gift of ‘a residue of a residue’ is not to be augmented by the lapse of another gift out of the general residuum. Wright v. Wright, 225 N. Y. 329, 340,122 N. E. 213. The testator has been careful to guard against the applicationof that rule to the gift of the remainder on the termination of the trusts. He has added to the eighth subdivision of his will the following: ‘This clause to be construed and considered as the residuary clause of this my last will and testament.’ The intention is thus manifest that the gift shall be a dragnet that will cover every interest not effectively disposed of otherwise.

2. The plaintiff, a sister of the testator, and the defendant John E. Wells, a nephew, complain of the conditions accompanying the gifts, and ask the court to declare them unlawful or at least inoperative. To state with accuracy the facts leading up to these conditions would extend this opinion beyond helpful bounds. With approximate correctness we may say that the sister and the nephew had an interest in certain land and shares of stock, or in the proceeds thereof in the event that land or shares were sold, which the testator wished them to surrender for the benefit of his wife, if they were to take under his will. We see no reason to doubt that the condition is one that he could lawfully impose. The long chapter of equity that bears the title ‘election’ must be expunged or rewritten if a gift so conditioned is to be treated by the courts as absolute. Without the aid of an express condition equity was able through the inventiveness of her chancellors to attain a like result. ‘One who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions and renouncing every right inconsistent with it.’ Havens v. Sackett, 15 N. Y. 365, 369;Beetson v. Stoops, 186 N. Y. 456, 463,79 N. E. 731,9 Ann. Cas. 953. He is driven to a choice between the assumption of the burden and the rejection of the bounty, and this though the burden, unaccompanied by the bounty, would be an officious intermeddling with the concerns or interests of another. The will in suit accomplishes by the express statement of a condition a result substantially the same as was attained by the chancery through its own creative powers. Stress is laid upon the point that the consents exacted may be futile even if obtained, since there are other interests outstanding, which, if they do not join in the consents, may mutilate the scheme. There is no substance to the criticism. The consents will at least be operative as to any interests represented by the sister or the nephew. The conclusion would not be different, however, if they were not operative at all. The legacies and devises were acts of bounty merely. The testator was free to withhold them altogether, or to subject them to conditions, whether sensible or futile. The gift to be taken as it is made or not at all. Brown v. Knapp, 79 N. Y. 136, 143;Dinan v. Coneys, 143 N. Y. 544, 547,38 N. E. 715.

3. The final question remains whether nephew and sister have waited so long before accepting the condition that they must be held to have rejected it, and so renounced the gift. The testator died in May, 1928, and his will was admitted to probate in July. In October, 1928, this action was begun. The plaintiff in her complaint refused to accept the condition or to reject it until advised by the court as to the power of the testator to impose...