On the seventh day of May, 1915, Charles Frederick Fowles and Frances May Fowles, his wife by a second marriage, perished in the sinking of the Lusitania while on their way to England. Two days before leaving New York, and on April twenty-ninth, 1915, they went to the office of their attorneys and gave instructions in each other's presence about the drafting of their respective wills which were executed the following day before common witnesses and in each other's presence. *Page 235
So far as material, Mr. Fowles' will provided as follows:
"Second. — I hereby give and bequeath the following legacies to the several persons hereinafter named, to wit: * * *
"(8) To my wife, Frances May Fowles, the sum of five thousand dollars ($5,000). * * *
"Fourth. — To my wife I give and bequeath all the personal property which may be contained at the time of my death in and upon my said estate `Fairmile Court,' including all household furniture, furnishings, silver, silverware, books, rugs, statuary (but not including any and all oil paintings) and any and all horses, carriages, harness, motors, livestock, farm tools and implements and any and all the contents of the garages, stables, conservatories and other out-buildings, and any and all their equipment and appurtenances. * * *
"Eighth. — A. All the rest, residue and remainder of my estate, both real and personal and wheresoever situate (including the proceeds resulting from the sale of my stock of the Scott Fowles Company), I direct my executors to divide into three parts or portions, the first part or portion of which shall consist of forty-five per centum thereof, and the other two parts or portions of which shall each consist of twenty-seven and one-half per centum thereof. The said first part or portion consisting of forty-five percentum of my said residuary estate (subject to the possible deduction of eight thousand two hundred and fifty pounds (8,250), as hereinafter provided), I give and bequeath to my Trustees, hereinafter named, In Trust, Nevertheless, for the use and benefit of my wife, Frances May Fowles, to hold and invest the same and to collect and receive any and all the income, interest and increment accruing thereon and the same to pay over to my said wife semi-annually and for and during each year of the full term *Page 236 of the life of my said wife. Upon the death of my said wife, the said trust shall cease and determine and the corpus of same I direct my said trustees to then dispose of as follows:
"One-half thereof to pay over pursuant to the provisions of such last Will and Testament as my said wife may leave (hereby conferring upon my said wife the power to dispose of the said one-half by last Will and Testament duly executed by her), and in the event that my said wife should fail to make testamentary disposition of the said one-half thereof, the same to divide into two equal portions and such two equal portions to pay over pursuant to the provisions of subdivisions `B' and `C' of this article of this my Will, one such portion passing under said subdivision `B' and one such portion passing under said subdivision `C.' * * *.
"Ninth. — In the event that my said wife and myself should die simultaneously or under such circumstances as to render it impossible or difficult to determine who predeceased the other, I hereby declare it to be my Will that it shall be deemed that I shall have predeceased my said wife, and that this my Will and any and all its provisions shall be construed on the assumption and basis that I shall have predeceased my said wife."
Subdivisions "B" and "C" were trusts for his two daughters, Gertrude Frances Browne and Gladys Mary Baylies, by his first wife.
The will of Frances May Fowles, duly admitted to probate, contained the following provision:
"Any and all the rest, residue and remainder of my estate, real and personal and wheresoever situate (including any and all property as to which I may have power of disposition by will by virtue of the provisions of the last Will and Testament of my husband, Charles Frederick Fowles), I give and bequeath to my Trustees, hereinafter named, In Trust, Nevertheless, to hold *Page 237 and invest the same for the use and benefit of my sister, Dorothy Elizabeth Smith, and to receive and collect the income, interest and increment accruing thereon and the same to pay over to the said Dorothy Elizabeth Smith in equal semi-annual installments during each year of the full term of the life of the said Dorothy Elizabeth Smith and for her sole use and benefit. Upon the death of the said Dorothy Elizabeth Smith the said trust shall cease and determine and I direct that my said trustees shall then pay over the corpus of said trust as follows: One-third thereof to Kenneth Charles Smith, the son of the said Dorothy Elizabeth Smith, or, if he should not then be living, in equal shares to the issue of the said Kenneth Charles Smith, per stirpes and not per capita; one-third thereof to my said husband's daughter, Gertrude Frances Browne, or, if she should not then be living, in equal shares to the issue of the said Gertrude Frances Browne, per stirpes and not per capita; and one-third thereof to my said husband's daughter, Gladys Mary Baylies, or, if she should not then be living, in equal shares to the issue of the said Gladys Mary Baylies, per stirpes and not per capita."
Upon petition, under section 2615 of the Code of Civil Procedure, the surrogate determined that the legacies under paragraphs "Second" and "Fourth" of Mr. Fowles' will, together with one-half of the forty-five per centum of the residuary estate mentioned in paragraph "Eighth," passed by substitution to the executor of the last will and testament of said Frances May Fowles for the uses and purposes described therein.
The Appellate Division reversed this decree of the surrogate, holding that in default of proof that the testator's wife, Frances May Fowles, survived the testator, the legacies above mentioned became part of the net residuary estate of the testator by operation of law, and the one-half of the forty-five per centum of the net residuary *Page 238 estate passed under the further provisions of paragraph "Eighth" into the trusts for the testator's two daughters.
The reasons which have been assigned in the various opinions written below need not here be discussed as it is sufficient to state the conclusions at which we have arrived and the authorities which sustain them.
As Mr. and Mrs. Fowles sank with the Lusitania and thus perished together, there is no legal presumption that one survived or outlived the other. The party alleging survivorship must prove it by some competent evidence. (Newell v. Nichols,75 N.Y. 78; St. John v. Andrews Inst., 117 App. Div. 698;191 N.Y. 254.) But this is no more than saying that the courts are limited in knowledge of events the same as individuals; that where no one knows who died first, the courts likewise cannot determine. It is no positive rule of law; it is the lack of one: the expression is a mere declaration of a fundamental principle of our jurisprudence, — that facts must be proved. The only facts that can be proved are the sinking and death. Our law goes no further; it indulges in no fictions or presumptions. Fictions and presumptions are means to an end in the absence of proof. The necessity for the creation of a fact by the ipse dixit of the court has never been felt by us in cases like this.
The negation of a positive rule does not render the ninth clause void and expunge it from the will. The entire will of Mr. Fowles must be read in order to gather his intention, and no part is to be disregarded because it may be illegal. (Tilden v.Green, 130 N.Y. 29, 55.) The first essential is to determine from everything the testator said in the will what he meant should be done with his property, and then, secondly, to ascertain whether his meaning and intent can be given legal effect. A man can do as he pleases with his own unless he runs counter to some rule of law or public policy. *Page 239
The bequests under the second and fourth clauses of the will are not dependent upon the validity of the bequest under the eighth clause and may be treated separately. As to these it is quite apparent that the testator intended to prevent a lapse under the conditions mentioned in the ninth clause of his will. He had given $5,000 and the personal property in England to his wife absolutely. If she died before he did, these legacies would lapse, and he, being the longer liver, could then modify his will as he chose. In case, however, he and his wife perished together, under the circumstances stated, he desired that these legacies should be paid as if his wife survived him. He, of course, knew that if they perished together she would not survive him and that the legacies could not actually be paid to her. What did he mean then by saying that he desired to have them paid as if she survived him? He must have intended that these legacies should become part of her estate and should be paid to her personal representatives. This is the only meaning that paragraph can have. "In the event," he says, "that my said wife and myself should die simultaneously or under such circumstances as to render it impossible or difficult to determine who predeceased the other, I hereby declare it to be my Will that it shall be deemed that I shall have predeceased my said wife, and that this my Will and any and all its provisions shall be construed on the assumption and basis that I shall have predeceased my said wife." In considering these two legacies it must be assumed that the testator predeceased his wife and that she took the legacies. She being dead, the intention can only be given effect by paying the legacies to her estate or to her personal representatives. The ninth paragraph cannot be disregarded altogether and this meaning, we think, is quite apparent.
In thus giving effect to the testator's intention, no rule *Page 240 of law is violated, all rules of construction are observed, and the authorities in similar cases followed. The testator could have stated that in case of death under the circumstances mentioned these legacies should be paid to his wife's representatives. He has stated the same thing in a different way. It is because testators do not always express themselves as exactly and as precisely as others might have done that so much litigation arises over wills, and has forced the courts to say that the intention of the testator, when this can be gathered from the four corners of his will, must be carried out, if not contrary to some rule of law. When the testator says that it shall be deemed that he predeceased his wife, it is the same as saying that it shall be deemed that his wife outlived him and that, although she be actually dead, she shall receive the legacies. The words "executor" or "personal representative" must, under these circumstances, stand for the wife who is actually dead. Such construction is in harmony with the ruling in many cases. (Phillips v. Davies, 92 N.Y. 199; Matter of Piffard,111 N.Y. 410; Matter of Vowers, 113 N.Y. 569; Woodward v.James, 115 N.Y. 346; Masterson v. Townshend, 123 N.Y. 458,462.)
Now as to the third legacy mentioned in paragraph "Eighth."
It was also the testator's intention that the legacy provided for by paragraph "Eighth," to wit, the one-half of the forty-five per centum residuary estate, should pass as directed by his wife in her last will and testament. For this purpose the testator, in the ninth clause of his will, says, in effect, "my wife shall be deemed to have survived me and, therefore, it follows that the will which she has made will take effect and dispose of this one-half of the forty-five per centum of my residuary estate." But in this instance, while the intention is clear, it cannot be given effect for the reason that it transgresses *Page 241 the law of this state applicable to wills. Unlike the provisions mentioned above, this part of the eighth clause gives no direct legacy to Mrs. Fowles but merely a power of appointment. No more direct or positive language could be used than that of the testator in creating this power. The words are: "Upon the death of my said wife, the said trust shall cease and determine and the corpus of same I direct my said trustees to then dispose of as follows: One-half thereof to pay over pursuant to the provisions of such last Will and Testament as my said wife may leave (hereby conferring upon my said wife the power to dispose of the said one-half by last Will and Testament duly executed by her)."
A power such as this can only be exercised by one who survives the testator. It cannot be executed in his lifetime. Mrs. Fowles could only exercise this power given to her by her husband's will in case she actually survived him. (Matter of Piffard, 111 N.Y. 410;Curley v. Lynch, 206 Mass. 289; Condit v. De Hart,62 N.J.L. 78, 80, 81; Sharpe v. M'Call, 1 Ir. Rep. [1903] 179, 184; Matter of Mayo, 76 Misc. Rep. 416.)
Section 141 of the Real Property Law (Cons. Laws, ch. 50) provides: "A power may be vested in any person capable in law of holding, but cannot be exercised by a person not capable of transferring real property." Powers over personal property are governed by the same rule. (Hutton v. Benkard, 92 N.Y. 295,305; Cutting v. Cutting, 86 N.Y. 522; Cochrane v. Schell,140 N.Y. 516, 534; Matter of Moehring, 154 N.Y. 423.)
Mrs. Fowles, unless she actually survived her husband, was not capable of transferring real property and was, therefore, not capable of exercising any power under her husband's will. To prove appointment according to the power given, it was necessary for those claiming under it to prove actual survivorship of Mrs. Fowles. The one fact that seems to have been agreed upon by the *Page 242 courts below and by all counsel in this case is that the appellant, Dorothy Elizabeth Smith, does not take by appointment.
The only other claim that can be made is that the will of Mrs. Fowles must be read into that of her husband, as he gives this part of his residuary estate in accordance with her will. But here again we are met with our law which prevents the incorporation into a will of other instruments which have not been duly executed and attested as required by our statute. (Dec. Est. Law [Cons. Laws, ch. 13], sec. 21; Booth v. BaptistChurch of Christ, 126 N.Y. 215, 247; Matter of Emmons,110 App. Div. 701; Matter of Conway, 124 N.Y. 455; Keil v.Hoehn, 72 Misc. Rep. 255.)
Whether or not our doctrine of incorporation by reference would exclude the will of a wife expressly and specifically made a part of her husband's will, both wills having been executed at the same time, need not be considered as such are not the facts in this case. The eighth clause of the will does not refer to any specific or existing will of his wife, according to which this part of the residuary estate is to pass, but has reference to the last will which she might make. Thus if she had survived him she could have changed her will as often as she pleased. Even in those states which do not follow our law, but have adopted the English doctrine of incorporation by reference, these facts would not justify reading Mrs. Fowles' will into that of her husband. (Curley v. Lynch, 206 Mass. 289.)
Mrs. Fowles has, therefore, failed to make any appointment as authorized by her husband's will, and the one-half of the forty-five per centum of the residuary estate passes in accordance with the determination of the Appellate Division to the trusts for the testator's children under the eighth clause. We cannot give to the words "in the event that my said wife should fail to make *Page 243 testamentary disposition of the said one-half thereof" the narrow construction that is insisted upon by the appellants, namely, that "to fail" means to fail after the power came into existence by survivorship, so that if no survivorship be proved this portion passes by intestacy. This phrase is broad enough to include the absence of appointment under any conditions.
We, therefore, conclude that the legacies under the second and fourth provisions of this will pass to the executor of Mrs. Fowles' will, and that the one-half of the forty-five per centum of the residuary estate under the eighth clause passes into the trusts for the testator's two children.
The order of the Appellate Division should be modified accordingly and the matter remitted to the surrogate for a decree in accordance with this opinion, with costs to the appellants in this court payable out of the estate.