Opinion
February, 1905.
James E. Hopkins, for the appellant.
Wilford H. Smith, for the respondent.
The action is brought to obtain a construction of the will of Marie L. Williams who died on the 9th day of June, 1900, leaving her husband, the executor, and a son, Henry G. Williams, and the appellant, her daughter, her surviving. The controversy arises over the construction of the following clause which is the first provision of the will: "After my lawful debts are paid, I give and bequeath to my son Henry G. Williams the nine one thousand dollar bonds on the Newburg, Waldron and Orange Lake Railroad, and I order and direct that the said bonds should be held in trust for him and that he shall receive the interest of them semi-annually until he becomes thirty years of age and then to be given to him. It is my desire and will that my husband, Lemuel L. Williams, shall act as trustee, and in event of his death it is my will that Four thousand dollars of these bonds to go to my daughter Marie E. Sempell, and five thousand dollars of the bonds to go to my husband, Lemuel L. Williams." Henry G., the son of the testatrix, died without issue and unmarried before attaining the age of thirty. The husband claims that the title to these nine bonds had vested in the son and that the title to them has passed to him as sole next of kin. The daughter claims that title to the bonds never vested in her brother or vested in him subject to be divested by his death under thirty years of age and that she takes five of the bonds under the will of her mother. The only other disposition of property made in the will is a bequest of $9,000, some jewelry and household effects and wearing apparel to the daughter and a bequest of certain shares of railroad stock, the household furniture and the residue of her estate to the husband. The husband qualified as executor and collected and paid the income of the bonds to his son during the life of the latter. It is contended that he is thereby estopped from now questioning the validity of the trust or asserting that his deceased son took a vested interest in the bonds I see no force in this contention. The appellant has not been prejudiced. If a valid trust was not created and the title passed absolutely to the son, the rights of the appellant have not been affected by the father acting as trustee with the acquiescence of his son. This brings us to the main question, which is whether the absolute bequest of those bonds in the first sentence of the clause quoted is cut down or modified and limited by the provision that in the event of the death of the son the bonds shall pass to the father and daughter in the proportion specified. If the will is to be so construed it is manifest that the provisions are repugnant. The rule is that repugnancy is to be avoided if the will be susceptible of any other reasonable construction. It is contended that the death of the son referred to in the will refers to a death in the lifetime of the testatrix, and that the case falls by analogy within the general rule applicable to the construction of provisions containing a bequest or devise over in the event of the death of the first legatee or devisee without issue, which is that those words shall be deemed to refer to a death in the lifetime of the testator. Part of the opinion of Judge FINCH, concurred in by all the members of the court, in Benson v. Corbin ( 145 N.Y. 351, 359) seems peculiarly applicable to this case. The learned judge in discussing this rule says: "While such is the general rule, it is said to maintain its hold somewhat weakly and with a doubtful grasp and to yield easily to any fact or circumstance indicating a different intention. Although that is undoubtedly true, it takes on some modification by force of another rule, equally well settled, that where there is primarily a clear and certain devise of a fee, about which the testamentary intention is obvious and without ambiguity, the estate thus given will not be cut down or lessened by subsequent words which are ambiguous or of doubtful meaning. If a slight circumstance or a slender reason will in ordinary cases prevent the application of the general rule, the circumstance or the reason must be strong and decisive where the construction collides with a plain devise in fee, and forces a change of its terms by cutting it down to a lesser estate. We do not easily trade a certainty for a doubt." There is no express bequest of the bonds to the trustee. It is unnecessary to determine whether the legal title to the bonds passed to the trustee or whether it vested in the son immediately upon the death of his mother subject to the execution of a power in trust to collect and pay over the income until he attained the age of thirty years. In any event the provisions of the first sentence quoted are ample to give him an absolute vested estate. ( Warner v. Durant, 76 N.Y. 133.) If the other provisions of the will are to be construed as vesting the bonds in the trustee or as divesting the son's title in the event of his death under thirty, it is manifest that this is inconsistent with the original devise. If, however, the devise of these bonds to the husband and daughter be held to relate to the contingency of the death of the son during the lifetime of his mother there will be no inconsistency or repugnancy. There would be reason in this disposition, for without it the bonds would pass to the father as the next of kin of his son in the event of the death of the latter prior to the death of the testatrix. ( Matter of Wells, 113 N.Y. 396.) There appears to be no material fact or circumstance to indicate a different intention on the part of the testatrix or that may be seized upon to justify or require a different construction. The mere fact that the testatrix did not see fit to vest the bonds in possession in her son until he attained the age of thirty years has no significant bearing, I think, on the question presented. Moreover, ample provision — property of the same or greater value being bequeathed to each of them — was made for the husband and daughter, and the son was liable to leave a wife and children. In that event, I think the mother did not intend to cut them off from inheriting or taking, as they would be if the construction contended for by the appellant prevails.
It follows, therefore, that the judgment should be affirmed, with costs to the respondent payable out of the estate.
VAN BRUNT, P.J., INGRAHAM and HATCH, JJ., concurred; O'BRIEN, J., dissented.
Judgment affirmed, with costs to respondent payable out of the estate.