In the petition for the probate of the will of Eleanor Forde, the named executor asked for a construction to determine whether by the single dispository clause the testatrix intended that her sister should take the entire net estate as a gift absolute, or should enjoy the life use of a trust of which the net estate should constitute the principal.
The Appellate Division has unanimously affirmed a decree by the Surrogate who construed the will as intending an outright gift of the net estate. The proceeding is here by our leave. *Page 130
The will is holographic. It provides:
"Carlton House 22 East 47th Street New York City — N Y July 10th 1926 —
"I, Eleanor Forde, of the above address, do hereby bequeath all my real and personal estate I may die possessed of to my sister, Emily Forde, of Brighton, Ontario, Canada, for her maintenance, as long as she lives, the estate to be administered by Alfred Barmore Maclay, 14 East 84th St. N.Y. City N.Y. according to his judgment.
"I hereby appoint Alfred Barmore Maclay executor without bond.
"I declare this to be my last Will and testament.
"Signed "ELEANOR FORDE
"Witness — GEORGINA M. ONET VICTOR M. ONET."
"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." (Robinson v. Martin, 200 N.Y. 159, 164; and see Matter ofWatson, 262 N.Y. 284, 293.) In this case I believe the language of the will, when considered in the light of the "relevant facts and circumstances," indicates an intent by the testatrix to create a trust for her sister — a woman "sixty-eight or sixty-nine" years of age, who was in "fairly good health," and to whom the testatrix had given financial aid and had shown solicitude. The appellants are two nephews and a grandniece who, with the beneficiary Emily Forde, are the only heirs at law and next of kin of the testatrix. The estate, we are told, will amount to nearly $35,000.
I find no use of words by the testatrix by which she makes an outright gift which is cut down by language employed in a later clause in the will. In one sentence the testatrix states her plan. Her sister is to have the entire estate — "for hermaintenance, as long as she lives, *Page 131 the estate to be administered by Alfred Barmore Maclay * * *according to his judgment." (Emphasis supplied.) "The gift and the statement of its purpose cannot be separated, one from the other * * *. In this case the later words are of equal force with the former and are free from ambiguity." (St. Joseph's Hospital v. Bennett, 281 N.Y. 115, 118, 119.)
The Appellate Division has affirmed a finding by the Surrogate that this language is not ambiguous. In my view the language employed is sufficiently accurate to express the testamentary intent. The phrase "for her maintenance" states the intended use for funds bequeathed. The phrase "as long as she lives" states the term of such use. Finally the testatrix directs "the estate to be administered by Alfred Barmore Maclay * * * according tohis judgment." The last phrase imports management of funds beyond the period of administration. When read with the preceding phrases — which connote both the use to which the fund shall be put and the term of such use measured by a lifetime — it is the direction to Alfred Barmore Maclay to administer the fund "according to his judgment" which disproves an intent by the testatrix to make an absolute gift. (Matter of McClure,136 N.Y. 238.)
The fact that the testatrix, who left no descendants, did not specifically refer to her two nephews and her grandniece as remaindermen, is no evidence of a purpose to disinherit them. She made the first object of her bounty her sister. She, it was, for whom the fund was to afford care for life. We may assume the testatrix had knowledge "that the lines of inheritance were governed by statute * * *" (Gilliam v. Guaranty Trust Co.,186 N.Y. 127, 138), and that, after the termination of the trust thus created, the remainder would be distributed according to the statutes of distribution then effective.
It is for these reasons that I dissent and vote for reversal and for the construction of the will for which the appellants contend.
LEHMAN, Ch. J., LOUGHRAN, FINCH, CONWAY and DESMOND, JJ., concur with RIPPEY, J.; LEWIS, J., dissents in opinion.
Order affirmed, etc. *Page 132