Citations
- 116 A.D. 217
Full opinion text
McLaughlin, J.:
This appeal'presents a single question, and that is the proper disposition to be made of a certain income derived from a fund created by the fourth provision of the will of Jesse Hoyt. The testator, by this provision of his will, gave to his executors in trust $1,250,000, for the use and benefit of his daughter during her natural life, and during that time the trustees were tó invest and reinvest the principal fund ■“ and keep the same invested and to collect and receive the interest, dividends and income therefrom and from each and every part thereof and to apply to her use for and during her natural life in the most bounteous and liberal manner as to expenditure and so.as to promote her convenience and comfort and gratify her. reasonable desires, the said interest, dividends and income so to be collected and received as the same shall be required for her use and benefit.” By the same provision he directed “ that the said sum of money hereinabove in this article directed to be appropriated and held in trust for and during the natural life of my daughter, Mary Irene and for her use as above herein provided as to the interest, dividends and income therefrom, or the securities in which the same shall be invested, and any surplus of income therefrom, if any, which shall not have been applied to her use during her natural life shall, on the death of my said daughter, go and be distributed to and among ” certain persons named.
The trust was created and the trustees, during the life of the daughter, paid over to her all of the income derived from the trust fund except $24,057.88, of which $13,885.83 had accrued but had not been collected at the time she died. This sum ($24,057.88) is now claimed by the executor of the daughter and also by the persons to whom the principal'sum was given at her death.
' The -learned surrogate held, and a decree has been entered to that effect, from which the present appeal'is taken, that the remaindermen mentioned in the will were entitled to the entire fund and that' the representatives of the daughter had no interest in it, and this upon the theory that the testator intended to vest his' trustees with a discretion as to the amount of income which should be applied towards the support of the daughter; that until this discretion had been exercised and an application made of the fund the daughter had no legal or equitable title to or interest in it; that such discretion had not been exercised as to the fund in question prior to the death of the daughter, for which reason it passed under the will to the remaindermen therein named — the persons presumptively entitled to the next eventual estate.
There are two reasons why I am unable to adopt the Construction put upon this provision of the will by the learned surrogate.
First. It is, as it seems .to me, contrary to what the testator intended, and if I am correct in this, then such a construction should be adopted as will carry out his intent. This is the general rule relating to the construction of wills. (Dougherty v. Thompson, 167 N. Y. 483.) The construction adopted by the surrogate is one which imputes to the testator an intent to make an illegal disposition of a portion of his propei'ty, which is not to be presumed. (Du Bois v. Ray, 35 N. Y. 162 ; Hopkins v, Kent, 145 id. 367.)
The court, in an effort to carry out his intent, should adopt a construction which will render valid the provisions of his will rather than one which will render them invalid. (Hoppock v. Tucker, 59 N. Y. 202 ; Phillips v. Davies, 92 id. 199 ; Greene v. Greene, 125 id. 512.) In the creation of this trust the testator had in mind the care, comfort and happiness of his daughter. This was the primary object which' he sought to accomplish and the gift to the remaindermen was secondary. The trustees were to invest and keep invested the principal sum and to collect the interest an provision of the statute which provides tli^t “ When, in consequence of a valid limitation of an expectant estate, there shall be a suspense of the power of alienation or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the persons presumptively entitled to the next eventual estate.” (See 1 R. S. 726, § 40; Eeal Prop. Law [Laws of 1896, chap. 547], § 53.) The conclusion of the surrogate is correct, if the statute is applicable. I do not think it is. The rule seems to be well settled that where the direction for an accumulation is void, and there is some other and legal disposition of the rents and profits, the' statute; does not apply ; that in such case the direction for • accumulation should be eliminated from the will.
The direction to accumulate in this will can be stricken out and there then still remains a valid disposition of the rents and profits. The testator gave the fund to the trustees to collect the income from each and every part of it. He clothed his trustees with power to apply the entire income to the use of his daughter. He also ' clothed them with power, in their discretion, if they did not think she needed all'of the income, to accumulate it, and if they did so, he gave it to the. remaindermen. The authority, as we have seen, to .accumulate is void but the authority to -pay the entire income to the daughter is nevertheless valid and enforcible. If this be true, then the daughter was entitled to the entire income and whatever had accrued at Jhe time she died passed to her representatives.' This conclusion, it seems to me necessarily follows from, the rule laid down in Pray v. Hegeman (92 N. Y. 508) and Barbour v. De Forest (95 id. 13). In the latter case the testator gave a portion of his residuary estate to his executors in trust to receive and apply the income to the Use of the plaintiff during, life. By a codicil the executors were directed, if in their judgment the whole of the income was not needed for plaintiff’s support, to retain and invest, the residue during her minority, .the accumulations to be considered and treated as part of the principal. It was held that the direction for accumulations was .void; that the plaintiff was entitled to the whole income. Judge Earl, speaking for the entire court, said : .“ The question is whether the accumulation directed by the codicil of this will was for the"benefit of the plaintiff, a minor, within the meaning of these provisions. If it was not, then itiwas invalid. The case of Pray v. Hegeman (92 N. Y. 508) is an authority controlling the decision of this case. There, a certain specified portion of 'the income of property was required to be applied by executors to the support and education of a.minor and the balance of the income was to' be added to.the share producing the income and accumulated • as principal until the minor arrived at the age of twenty-one years, after which period. the whole of. the income was to be applied to' that child for life and upon the death of the child was to go to other persons.; In that case it was held.that under the provisions of law referred to, the accumulation was to be for the benefit, of the minor solely and during his minority, and that a direction for accumulation during a minority, accompanied with a gift of the income of the accumulated fund, after the expiration of the minority to the minor for life, and of the principal upon his death, to other persons, is void. That case is not distinguishable from this from the fact that only a^specified portion of the income was to be paid to the minor during his minority and that the undefined balance was to be accumulated. Here, the direction to accumulate applies to so much of the.income as, in the judgment of the executors, should not be needed for her support. * * * It was further decided in the case referred to, that in such a case the direction to accumulate must be stricken from the will so as to leave the inconm to go immediately to the party entitled to the life estate. The result, by applying the principles of that case to this, is that' the plaintiff is entitled to a judgment declaring the direction to accumulate contained in the codicil of this .will to be void, and that she is entitled to the whole income of the share put in trust, for her.”. (See, also, Matter of Keogh, recently decided by the" Appellate Division of the second department [112 App. Div. 414], and in which it wras held that income accumulated by trustees under a"provision of a will belonged to the personal representatives of the life beneficiary).
In either view, therefore, it seems to me that the decree directing the payment of the fund in question to the remaindermen is erroneous, and that the same should be modified by directing the'payment of the income which had accrued upon the trust estate prior to the death of the life tenant to her legal representatives, with costs to the appellant payable out of the estate.
Patteeson, In&kaham and Claeke, JJ., concurred; Laughlin,