[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 340 The first question presented upon this appeal is how far the findings of fact may be reviewed or considered by this court under a unanimous affirmance. An exception to a finding of fact unanimously affirmed by the Appellate Division presents no question reviewable by the Court of Appeals, and where the facts as found justify the conclusions of law and no other exceptions appear which present any questions of law, the judgment must be affirmed. (Krekeler v. Aulbach, 169 N.Y. 372.) Even if the error in the decision of the case upon which the appellant relies is predicated upon undisputed evidence, which is not contained within a finding of fact, it cannot be considered by this court. (Marden v. Dorthy, 160 N.Y. 39, 45; Hilton v. Ernst,161 N.Y. 226, 228; Clark v. Nat. Shoe Leather Bank, 164 N.Y. 498,501.)
As in this case no valid exception was taken to the admission or exclusion of evidence, the sole question to be determined *Page 342 is whether the facts found by the trial court were sufficient to justify its conclusion that it was the purpose and intent of the testator to charge the legacies mentioned in paragraphs two and four upon the real estate owned by him at the time of his death. Whether a legacy is charged upon the real estate of a decedent, is always a question of the testator's intention. Primarily, the language of the will is the basis of the inquiry, but extrinsic circumstances which aid in the interpretation of the language employed and help to disclose the actual intention are also to be considered. (Le Fevre v. Toole, 84 N.Y. 95; Hoyt v. Hoyt,85 N.Y. 142; Scott v. Stebbins, 91 N.Y. 605; McCorn v.McCorn, 100 N.Y. 511, 513.)
It is obvious, as found and held by the learned trial court, that at the time of the execution of the will the testator's personal estate was represented by accounts in various savings banks, opened by him in his name in trust for his wife, his adopted daughter and sisters, and, hence, that the only fair conclusion from the evidence is that, when the accounts were opened, the testator intended to create a trust for the benefit of the beneficiaries named therein, and that he believed he had the right at any time during his life to revoke any of those trusts and change the disposition of such moneys as he saw fit, and that all moneys standing in trust at his death would belong to the beneficiaries named in the various accounts. It was upon that theory only that the trial court was able to harmonize the facts in the case. Moreover, the parties to the action seem to have adopted that theory, for all the trust accounts in existence at the time of the testator's death were subsequently closed by the beneficiaries, and the money appropriated to their own use, without objection on the part of the executor. The testator, when he made his will, must have known that without those accounts his personal estate was insufficient to pay the legacies, taxes, etc., mentioned in the second and fourth clauses of his will, and it is manifest that he intended the provisions made therein for his wife and daughter to become effective. His first duty *Page 343 was to them. Intending that these legacies should be satisfied, and having reason to know that his personal property would be insufficient for that purpose, the legacies should be charged upon the real estate.
It is to be observed that the question in this case is not whether the deposits by the testator of his personal property in different banks in trust for his wife, his adopted daughter, his sisters and brothers, created an irrevocable trust, but is whether, when he made his will with the existing trusts, which substantially embraced all his personal property, he intended that the taxes, assessments and repairs upon the property which was devised to his wife and daughter during their lives and his legacy of five thousand dollars to the latter, should be paid out of the real estate which had not been specifically disposed of. His intent is not dependent upon the validity of the various trusts, but the proof of their existence bears alone upon the question whether, at the time of the making of the will, he intended that his provisions for his wife and daughter should become effective by applying his real estate to their payment, his personal property having been thus disposed of. It is quite manifest that he understood that the different trusts which he had created would exhaust his personal estate, that the legacy to his adopted daughter and the taxes, etc., must, if paid, be paid from his real estate, and that it was his clear and obvious intention that they should be so paid.
Moreover, in Matter of Totten (179 N.Y. 112, 125) the following rule was established as the law governing such attempted trusts: "A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that *Page 344 an absolute trust was created as to the balance on hand at the death of the depositor." Therefore, under that rule and the proof in this case it is evident that upon the death of the testator, with the existing trusts as to his personal property, he was not in fact possessed of sufficient other personal property to pay either the legacy to his adopted daughter or the taxes, etc., upon the St. Marks avenue real estate. It is also disclosed that from the time of the making of the will, although there were changes, there was practically a continuation of similar trusts in favor of his daughter, brothers and sisters, which, if paid, would practically exhaust his personal estate. Therefore, even if this court were to examine and review the findings of fact made by the trial court, it would necessarily reach the same conclusion as that reached by the learned trial judge.
We, therefore, concur in that conclusion, and are of the opinion that inasmuch as it is found and established by the evidence that the testator knew, at the time of making his will, that his personal property was insufficient to meet the legacies and charges for the payment of taxes, etc., the courts below were justified in holding that he intended that such legacies and expenses should be charged upon the real estate. As was said by Judge FINCH in McCorn v. McCorn (supra), these legacies and charges for the widow and daughter "were mere mockeries unless meant to be charged upon the real estate." The intention and purpose of the testator to be determined was that which was found to exist at the time of the execution of the will and cannot be varied or changed by any after-occurring events. (Morris v.Sickly, 133 N.Y. 456.)
The judgment should be affirmed, with costs.
CULLEN, Ch. J., O'BRIEN, BARTLETT, HAIGHT, VANN and WERNER, JJ., concur.
Judgment affirmed. *Page 345