Robinson v. Martin

• Decision Date: 06 December 1910
• Citation: 200 N.Y. 159,93 N.E. 488
• Parties: ROBINSON v. MARTIN et al.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 159

93 N.E. 488

ROBINSON

v.MARTIN et al.

Court of Appeals of New York.

Dec. 6, 1910.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Caroline M. Robinson against Katharine T. Martin and others for the construction of a will. From an interlocutory judgment construing the will and for an accounting, plaintiff appealed. The judgment was reversed and judgment directed (see 138 App. Div. 310,123 N. Y. Supp. 146), and thereafter the Appellate Division certified a question as to the construction. Question answered.

See, also, 139 App. Div. 909,124 N. Y. Supp. 1128.

Cullen, C. J., and Haight and Willard Bartlett, JJ., dissenting.

Charles H. Beckett, for appellant.

Thomas Thacher, for respondents.

GRAY, J.

This action was brought to have a clause of the will of Mary J. Martin judicially construed, by which a share of her estate upon the decease of a child, for whose benefit during his life it was to be held in trust, was given to testatrix's ‘unmarried daughters in equal shares.’ The Appellate Division has certified the question for our review whether the clause should be construed ‘to include all of the daughters of the testatrix, who were unmarried at the date of her death, or only such of them as were unmarried at the date of the death of her son, the life beneficiary.’ Upon this question the learned justices of that court have divided in opinion; the majority holding that only the daughters unmarried at the time of the death of her son were intended and reversing, thereby, a decision of the court at Special Term, sustaining the other contention. It must be conceded, therefore, that the question is one which admits of serious argument for the one, or the other, view.

As the will is constructed, I think it is quite possible to discover strong evidences of a testamentary intent, which becomes clear, when we consider, in connection with the provisions of the will, the situation of the family. At the time of making her will, in 1894, the testatrix was a widow. She had several children, a son, who was feeble-minded and unable to take care of himself, and six daughters, the oldest of whom was married. The ages of the five unmarried ones ranged from 19 to 31 years. Two years after executing the will, the testatrix died, leaving a large estate, and, at that time, there had been no change in the family relations by other marriages. The son died in 1908 and intermediate the mother's death and that event three daughters had married. If the contention of the plaintiff, appellant here, is correct, then the distribution of the son's share should be made to and among her four sisters and herself, who were unmarried at her mother's death, and that contention, as it is claimed, is supported upon the theory that the gift of the share to them was immediate and its enjoyment in possession merely postponed. The plan of the will is not involved in any obscurity. After providing for the payment of debts, by the second paragraph the testatrix gives all of her property to her executors and trustees upon certain trusts. In the first subdivision of the paragraph, she declares it to be her ‘wish that her unmarried daughters, or such of them as desire to live together, with my son John C. Martin, shall live in one household, whether at my present home, or elsewhere.’ She directs the house in which they had been living to be kept in repair and the taxes and insurance to be paid, during the lives of the two youngest of her surviving daughters, ‘but only so long as any of my daughters remaining single may choose to make it their home.’ A trust fund of $20,000 is to be reserved; the net income of which is to meet those expenses. She further provides, if her ‘unmarried daughters, or such of them as desire to live together with my son,’ prefer to live elsewhere, that her house and the fund for its maintenance, if already reserved, should fall into the residuary estate. Thereupon, ‘for the purpose of providing a suitable residence’ for them, a fund of $50,000 was to be set apart from the residuary estate, or, if after its distribution, from the proceeds of the sale of the house, during the lives of the two youngest of her daughters, which was to be applied to the purchase of a satisfactory residence; the balance, unexpended, to be invested and the income to be used in meeting the expenses of keeping the house in good order and in paying the taxes, insurance, etc. Upon the death of the survivor of her two youngest daughters, the house and the trust fund were to be ‘divided in the same manner as her residuary estate.’ The contents of the ‘home,’ thus provided, were to be divided among her surviving children equally. In the second subdivision of the paragraph, she creates a trust for the benefit of her son, during his life, in one share, ‘which share shall be the proportionate part which he would receive of my estate, in view of the number of my children who may survive me and of my children who may have died before me leaving lawful issue me surviving.’ She directs the net income of the share so held in trust to be applied to her son's use and for his proper support, and then follows the clause under consideration, which reads: ‘And upon the death of my said I give, devise and bequeath the said share to my unmarried daughters in equal shares.’ Before the execution of the will, the word ‘unmarried’ was substituted by the testatrix in the draft for ‘surviving.’ Finally, in the third subdivision of the second paragraph, she provides that the residue of her estate should be held in trust during the lives of the two youngest of her surviving daughters, but not beyond the period of 10 years, and that the net income should be paid in equal shares to her children, ‘except her son John’; the share of any deceased child to be applied to the use and support of her issue, if any, surviving. Upon the expiration of this trust, the trust estate is given to her ‘children (other than her son John), in equal shares, per stirpes.’

From this review of the testamentary provision made for the children of the testatrix, it appears that in two respects, only, does she make any distinction between them in disposing of her estate. Her son's share is to be held in trust and she makes the disposition of it upon his death. For him and her unmarried daughters she provides for the maintenance of a common home, and the unmarried daughters are to have the son's share upon his death. The reason in each case would seem to be clear. The son was unable to take care of himself and the daughters, who were unmarried, would not have that protection and the additional means for support, which marriage is usually presumed to bring. These cases, evidently, appealed to the mother's mind in making her will and her provisions should be read in that light. That she carefully considered her words appears from the erasure in the draft of the word ‘surviving,’ in the clause which disposesof the son's share in favor of her daughters, and the substitution of ‘unmarried.’ I think the circumstance has its significance. ‘Surviving daughters' might have comprehended all of her daughters who outlived her son, and that, evidently, she did not intend. In changing the expression to ‘unmarried daughters,’ she limited the number of those who were to take and the question of the case arises: To what time did the word ‘unmarried’ refer? In my opinion, the plan of the will, its language, and the situation point to the son's death as the event in time, which was to determine what daughters should take; that is to say, those at that time unmarried. In the work of judicial construction, we cannot, of course, predicate certainty of our conclusions as to intent. At the most, we can, and we should, give that construction to a will, which has ‘in its favor the balance of reasons and probabilities.’ Weeks v. Cornwell, 104 N. Y. 325, 336,10 N. E. 431, 433. Precedents and rules, frequently, have but slight value in interpreting wills; for those instruments are rarely, and, in the nature of things, are not likely to be, similar in terms. When the testator's intention is obscure, resort to them may be helpful in ascertaining it. Where, upon inspection of the will and upon a consideration of relevant facts and circumstances, an intent is apparent, all rules to the contrary must yield, provided that intent does not offend against public policy, or some positive rule of law. It may well be that some of the rules of construction require a greater force of intention to control them; but if it be found in the instrument, it should be followed. This will furnishes, in my judgment, a case of such force of intention as to make it more probable, if not certain, that, in the clause under consideration, testatrix was referring to the son's death as the period for ascertaining the persons who should be entitled to take his share. The words ‘upon the death of my son’ are, of themselves, not controlling; but when read with the context of the whole second paragraph of the will, they appear to have a determinative power of definition.

As it has been suggested, perfect equality was intended between the testatrix's children, except as to the restriction upon the son's possession of his share, the eventual right thereto of the unmarried daughters, and the provision for a home for them. The distinction in favor of unmarried daughters must be carefully noted. They were of marriageable age and their mother shows her appreciation of the fact; for, in providing for the maintenance of the home, it is to be ‘only so long as any of my daughters remaining single may choose,’ etc. When any one of them married, she ceased to be entitled to the benefit of that provision. During the trust period, the unmarried condition of the daughter determined her right to share in the provision for the home. They and the incompetent son were to live together in the house and that situation is carried along in the...