[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 283 This appeal presents the question whether subdivision "Fourth" of the testator's will creates a trust for the benefit of the plaintiff or a charge upon the residuary estate in her favor, which can be enforced in a court of equity. *Page 284
The courts below have rendered judgment for the plaintiff, and this appeal is from a unanimous decision of the Appellate Division.
In order to properly construe the various provisions of the will and to ascertain the intention of the testator, it is necessary to consider the surrounding circumstances that culminated in the testamentary act.
The plaintiff was the niece of the testator — a child of his deceased sister; he took her into his family when six years old, and she was about seventeen years of age when he died in December, 1888; he bestowed upon her the same care, maintenance and education as he gave his daughter, who was a few months older than plaintiff, and she accompanied him and his wife and daughter on several trips to Europe, traveling and sojourning with them there for nearly five years.
In September, 1888, about three months before his death, the testator executed his will wherein he provided for the plaintiff, his daughter and his wife, who is the defendant in this action, she having contracted a second marriage with one Fassitt.
The scheme of the testator is clear and consistent with the situation which confronted him; he made his wife the executrix of his will in addition to an executor named; he created a trust fund for the benefit of his mother during life; he directed his wife out of the property "hereinafter given and bequeathed to her," which was the residuary estate, to use so much thereof for the support and benefit of the plaintiff as she should from time to time in her discretion think best so to do; he created a trust fund of $20,000, the income of which was to be paid to his wife for life, and at her death $1,000 of the income was to be paid to plaintiff until her marriage, and if she never married then during her life; he created a trust fund of $50,000, the income of which was to be paid to his wife until his daughter attained the age of twenty-eight years, when the trust terminated and the principal vested in the daughter; he gave the residue of his estate to his wife.
The testator's personal estate at the time of his death *Page 285 amounted to about $193,000.00. It will thus be seen that, so far as plaintiff was concerned, the testator made complete provision for her future support; he confided it to the discretion of his wife as to amount during her life, and at her death the plaintiff was to receive $1,000 a year until her marriage, and if she did not marry, for life.
If the intention of this testator is to control, as it surely must, it cannot be assumed that he meant to leave this child of seventeen, of his own blood, the object of his solicitude for years, to face the world and earn her own living, if it was so ordered by the mere caprice or ill-will of his widow.
The fourth subdivision of the will, providing for plaintiff's support, and the eighth, devising and bequeathing the residuary estate to the wife, must be read together. The fourth subdivision reads: "I direct my wife * * * out of the property hereinafter given and bequeathed to her by this will to use so much thereof for the support and benefit of my niece, Georgie S. Collister, as my said wife shall, from time to time, in her discretion think best so to do."
The eighth subdivision devises and bequeaths to the wife the rest, residue and remainder of the estate. This is the only devise and bequest to the wife, so there is no uncertainty when we read in the fourth subdivision the direction that "out of the property hereinafter given" to her she was "to use so much thereof for the support and benefit" of the niece "from time to time," as she should in her discretion think best.
This positive direction of the testator points out the fund and creates a charge thereon; the amount for support and benefit is to be taken out "from time to time;" the sum necessary is alone left to the discretion of the wife, as it might very well vary according to existing circumstances in the years to come.
It is, however, vigorously argued orally, and in the briefs on behalf of the appellant, that the words of the fourth subdivision of the will are merely precatory and do not cut down or qualify the words of absolute devise and bequest in the residuary clause. *Page 286
It is also insisted by counsel that to sustain the validity of the clause in question is to overrule a number of cases in this court.
It is a trite saying that no will has a brother, and it may also be said that the citation of numerous authorities, in most instances, are of little assistance to the court, as each will must be construed in the light of peculiar surrounding circumstances, the scheme disclosed, the language employed and the intention of the testator gathered from the general situation. In the case before us the intention of the testator to provide for the continuous support of his niece from his decease until she married or died, is absolutely clear.
The cases cited in this court do not stand in the way of carrying out this intention of the testator. In none of them is there a state of facts similar to that here presented.
In Foose v. Whitmore (82 N.Y. 405) the will read: "I * * * give and bequeath all my property, real and personal, to my beloved wife, Mary, only requesting her, at the close of her life, to make such disposition of the same among my children and grandchildren, as shall seem to her good." It is very clear that these are precatory words. The testator gives everything to his wife absolutely, with a mere suggestion as to the disposition she shall make of the property at the close of her life. The wife, vested with absolute title and living many years, the estate at her death might be necessarily expended, or improvidently wasted. The testator's words evidently created no trust or charge.
In Clarke v. Leupp (88 N.Y. 228) the testator gave all his property to his wife, closing with the words, "and do appoint my wife * * * my true and lawful attorney and sole executrix of this my will, to take charge of my property after my death, and retain or dispose of the same for the benefit of herself and children above named." It was held the widow took an absolute title, and that the succeeding words did not limit the gift. In the case cited, we have an absolute gift, followed by words that were held not to disclose the clear intention to cut it down. (Banzer v.Banzer, *Page 287 156 N.Y. 429.) In the case at bar the situation is reversed and the words creating the trust, or charge, stand first in the will, and the absolute gift is subject to the same; when construed together they are perfectly consistent.
The case of Lawrence v. Cooke (104 N.Y. 632) is cited by appellant as controlling on this appeal. The grandfather of the defendant, after devising and bequeathing his residuary estate to her, added these words: "I commit my granddaughter (the plaintiff) * * * to the charge and guardianship of my daughter (the defendant). * * * I enjoin upon her to make such provision for said grandchild out of my residuary estate * * * in such manner at such times and in such amounts as she may judge to be expedient and conducive to the welfare of said grandchild, and her own sense of justice and christian duty shall dictate." In holding that no trust or charge was created under the facts disclosed, Judge RAPALLO said: "If the clause had been that the testator enjoined upon the defendant to make suitable provision, out of the residuary estate, for the support of the plaintiff, there would be force in the argument, not indeed that the defendant took the residuary estate in trust, but that she took it subject to a charge, the amount of which might be ascertained by a court of equity, and satisfaction thereof decreed. But such is not the language of the will. * * * There was nothing in the will which required her to provide for the support of the grandchild during her minority. She was living with her father, out of the state. No obligation was imposed upon the defendant by her father's will to indemnify the father of the plaintiff for her support, or to furnish him with means therefor. The provision in the will was not intended for the benefit of the father of the plaintiff, nor to relieve him from his legal obligation to support his own child. All these matters were left wholly to the discretion of the defendant, uncontrolled by any consideration except, to use the language of the testator, what `her own sense of justice and christian duty shall dictate.'"
Every word quoted from the opinion of the learned judge *Page 288 distinguishes the case in which he was writing from the one at bar, and the case he put by way of illustration as creating a charge which a court of equity would enforce is, in substance, the case before us.
In Matter of Gardner (140 N.Y. 122) the testator, after vesting the absolute title of his property in his wife, provided that if any part of it should remain unexpended at her death, he gave it to his son, his heirs and assigns. Following this was the expression of testator's expectation and desire that his wife should not dispose of any of the estate by will so that it would go out of his "own family and blood relations." It was held that the words of expectation and desire did not qualify the wife's absolute estate; also, that if the words could be construed as a power in trust for the son it was fully executed.
This case has no application to the one before us, and does not announce any principle in hostility to affirming the judgment at bar.
In Clay v. Wood (153 N.Y. 134) we have a case where an absolute estate in the wife is followed by the following words: "And it is my desire and request that my said wife do sustain, provide for and educate * * * the daughter of my said adopted daughter. * * * And it is my further desire and request that my wife do make the said * * * and my nephews and nieces, the children of my brothers, * * * joint heirs after her death in the said estate which by this will I have bequeathed to my said wife." This clause was held precatory, and the estate absolute in the wife. This conclusion was reached because the words construed followed the absolute devise and bequest, and for the further reason that the facts surrounding the making of the will warranted the conclusion. The case has no fact in common with the one before us, and illustrates how dangerous it is to follow supposed precedents in construing wills which have their origin in the varying experiences of human life.
We have already pointed out what seems to us the intention of the testator, which was to charge the support of his niece *Page 289 upon the residuary estate subsequently vested in his wife. This intention is, therefore, the controlling factor in the case, and there is no authority holding to the contrary.
In Phillips v. Phillips (112 N.Y. 197), after a gift of all his estate to his wife, the testator inserted this provision: "If she find it always convenient * * * to give my brother * * * during his life the interest on $10,000 (or $700 per annum), I wish it to be done." It was proved that during the years the widow refused to make these payments it was entirely convenient for her to have paid the allowance. It was held that the provision contemplated, not the widow's choice or preference, but her pecuniary condition each year; that the intent of the testator was to charge the annuities upon the gift to his wife if convenient for her to pay them.
Judge FINCH, in delivering the opinion of the court, said: "The primary question in every case is the intention of the testator, and whether in the use of precatory words he meant merely to advise or influence the discretion of the devisee, or himself to control or direct the disposition intended. In such a case we must look at the whole will, so far as it bears upon the inquiry, and the use of the words `I wish' or `I desire' is by no means conclusive. They serve to raise the question, but not necessarily to decide it. We are convinced that in the present case the testator meant to charge upon the gift to the wife the annuities to his sister and brother, provided, only, that their payment should not occasion her inconvenience."
In Colton v. Colton (127 U.S. 300) the Supreme Court of the United States held, in a case where there was an absolute gift of the estate to the wife followed by the words "I recommend to her the care and protection of my mother and sister, and request her to make such gift and provision for them as in her judgment will be best," that the mother and sister took under the will a beneficial interest in the estate given to the wife to the extent of a permanent provision for them during their respective lives, suitable and sufficient for their care and protection, having regard to their condition and necessities, and the amount and value of the fund. Also that it was the *Page 290 duty of the court to ascertain what provision would be suitable and best under the circumstances and all particulars and details for securing and paying it.
Mr. Justice MATTHEWS said: "If there be a trust sufficiently expressed and capable of enforcement by a court of equity, it does not disparage, much less defeat it, to call it `precatory.' The question of its existence after all depends upon the intention of the testator as expressed by the words he has used, according to their natural meaning, modified only by the context and the situation and circumstances of the testator when he used them. On the one hand, the words may be merely those of suggestion, counsel or advice, intended only to influence and not take away the discretion of the legatee, growing out of his right to use and dispose of the property given as his own. On the other hand, the language employed may be imperative in fact though not in form, conveying the intention of the testator in terms equivalent to a command and leaving to the legatee no discretion to defeat his wishes, although there may be a discretion to accomplish them by a choice of methods, or even to define and limit the extent of the interest conferred upon his beneficiary."
It thus appears that the fact, in the case at bar, that the testator left the amount to be used for the support of his niece to the discretion of his wife offers no obstacle to a court of equity. This discretion must be honestly and intelligently exercised, and if it is not, a court of equity will compel it.
In Costabadie v. Costabadie (6 Hare, 410) the court said: "If the gift be subject to the discretion of another person, so long as that person exercises a sound and honest discretion, I am not aware of any principle or any authority upon which the court should deprive the party of that discretionary power. Where a proper and honest discretion is exercised, the legatee takes all that the testator gives or intended that he should have, that is, as much as in the honest and reasonable exercise of that discretion he is entitled to. That is the measure of the legacy. But consistently with the plaintiff having an interest subject to the mother's discretion, she has *Page 291 a right to discovery of the property in respect of which the interest exists, and also a right to a discovery of all the acts which have been done, and the reasons for doing them which the defendant may be able to give. She has that right in order that the court may be able to see whether the discretion which has been exercised by the party intrusted with it is within the limits of a sound and honest execution of the trust. * * * If a bill be filed, the court will, of course, inquire into the acts which may have been done in the administration of the trust, and may possibly (as has been done in many cases) require the trustee to exercise the discretion under the view of the court."
In Lawrence v. Cooke (104 N.Y. at page 638) Judge RAPALLO said, in language already quoted, that if the wife took the estate subject to a charge, the amount "might be ascertained by a court of equity and satisfaction thereof decreed."
In the case at bar the discretion of the defendant was not properly or honestly exercised. The defendant contributed to the support of plaintiff in 1888, $25; 1889, $188.50; 1890, $150; 1891, $65.50; 1892, $119.70; 1893, $207.14, and 1894, $25.00. Since the year 1894 the defendant has made no provision for plaintiff's support, so far as this record discloses the facts.
The plaintiff while living with her grandmother, testator's mother, paid nothing for her board and lodging, but maintained herself by giving music lessons and on such sums as were contributed by defendant, as before stated.
Plaintiff lived with her grandmother until the death of the latter, about September, 1894, and received under her will the whole of her estate, amounting to about $2,000.00. It is found that soon after this the plaintiff, for the purpose of earning a livelihood, entered the Presbyterian Hospital in the city of New York to fit herself for the position of a trained nurse, expecting to graduate in May, 1898; that while in the hospital she received her board and lodging and a salary of $9 per month, and after graduation she will earn $22.00 a week when able to secure employment; that she is dependent *Page 292 on her earnings and the income of $1,500 remaining of her grandmother's estate.
In view of this situation the Supreme Court has adjudged that for the six years from December 8th, 1888, the date of testator's death, the plaintiff is entitled to $500 a year, payable quarterly, and since that time to $1,000.00 a year, payable in like manner.
We are of opinion that the defendant took the residuary estate of the testator charged with the payment of a reasonable amount for the support of the plaintiff, in accordance with the terms of the will, and as she failed to honestly and fairly exercise the discretion vested in her, it was competent for a court of equity to ascertain the amount and decree its payment.
In closing, it may be be proper to notice two additional points raised by appellant's counsel.
It is insisted that the plaintiff having left the home of testator three months before his death, discarded his surname and assumed her own of Collister, had changed her relations with the family and to some extent caused the testator to treat her differently than he might otherwise have done.
The referee finds that the plaintiff resided with her grandmother from "about September 7th, 1888." The testator's will is dated September 11th, 1888, and refers to his niece as Georgie S. Collister. It is evident that the will was not made after the plaintiff had been long separated from testator, and it is quite possible she was a member of his household when it was executed.
The other point is raised by an offer made by defendant to the plaintiff at the trial in the form of a letter which was offered in evidence and excluded, defendant excepting. The letter is dated November 18th, 1896, and is as follows: "I have concluded to exercise the discretion vested in me under the will of my late husband, Gerard B. Scranton, deceased, dated the 11th day of September, 1888, and to allow you the sum of $400 a year for your support and benefit, the same to accrue to you from November 1st, 1895." *Page 293
This offer was properly rejected for several reasons; it did not deal with nearly eight years prior to November 1st, 1895, during which time defendant had failed to fairly contribute to plaintiff's support; it was not on its face an honest and fair exercise of the discretion vested in defendant; it was inconsistent with the answer which repudiated all right in the plaintiff (Clark v. Post, 113 N.Y. 17); it did not purport to be an offer of judgment under the Code of Civil Procedure.
We do not deem it necessary to discuss the other points of counsel, which have, however, received due consideration.
The judgment appealed from should be affirmed, with costs.