This was an action for the judicial construction of the will of Gerard B. Scranton, who died in December, 1888, leaving a widow and one daughter, who received the bulk of his estate. After directing the payment of his debts and appointing executors, of whom the widow was one, three separate trusts were created for the benefit of the testator's mother, wife and daughter, as to which there is no question raised in this case. By the last or residuary clause the testator devised and bequeathed all the rest, residue and remainder of the estate, both real and personal, of which he should die seized or possessed, or to which he should be entitled at the time of his death, to his wife absolutely. The plaintiff is a niece of the testator. She entered his family when about six or seven years of age and resided with him as a member of his family until a few months before his death, when she went to reside with her grandmother, where she resided until the grandmother's death in September, 1894, nearly six years after the death of the testator. By the fourth clause of the will the testator referred to the plaintiff in the following language: "I direct my wife, Amelia A. Scranton, 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 only question presented by this appeal is whether this *Page 294 language creates a trust in favor of the plaintiff, or a charge upon the property given to the widow, or a disposition of property in any form or any right to share in the estate which the courts have power to enforce. The courts below have given construction to this provision of the will, and by the judgment it is decreed that the defendant, the widow of the testator, is bound to pay to the plaintiff the sum of $5,000, besides costs and an additional allowance for what accrued to her under this clause of the will up to the time of the entry of judgment; and, further, that the plaintiff is entitled to be paid out of the property given and bequeathed to the defendant by the will, for the plaintiff's support and benefit, the sum of $1,000 in each and every year during the term of her natural life, or until she shall marry, to be paid in quarterly payments commencing on the 8th day of March, 1897, and quarterly thereafter in each and every year, and the defendant is directed by the judgment to make such payments at the times and in the amounts thus adjudged. The judgment is, in theory, supposed to reflect the will and intention of the testator, and the intention is imputed to him that the plaintiff should be paid in each and every year during her life or until her marriage the sum of $1,000 for her support. I am unable to see that this judgment has any foundation whatever in the will upon which it is based. Independent of the question whether the words quoted are sufficient to create a trust or a charge upon the property of any kind, it is quite clear that the amount to be contributed, if any; was left entirely in the discretion of the defendant, and the courts have determined that this discretion shall be exercised at certain times by the payment of a specified sum of money, and it is said that all of this is in accordance with the expressed intention of the testator. The plaintiff not only recovers a specified sum to be paid in the future, but all arrears that are said to have accrued to her during the five years that she lived with her grandmother. It seems to me that this is simply a perversion of the will, since it substitutes the discretion and judgment of a court for the discretion of the widow *Page 295
But it is quite clear that, unless we are prepared to overrule a long line of decisions in this court, this provision of the will created no trust in favor of the plaintiff, or any charge upon the estate devised and bequeathed to the defendant. It was simply the expression of a desire, request or expectation on the part of the testator. In other words, he requested his wife to contribute such sums for the benefit of the plaintiff, from time to time, as in her discretion she thought best. These words created no positive obligation on the part of the widow or any charge upon the estate. That this view is in accordance with the settled law of this state seems to me very clear, and it will be necessary to refer to only a few of the more recent cases. InFoose v. Whitmore (82 N.Y. 405) the provision of the will was, "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 was held that the gift to the wife was absolute; that the concluding words amounted to a mere suggestion, and did not create a trust or any charge upon the estate. In Clarke v. Leupp (88 N.Y. 228) the testator declared that he deemed it his duty to make a will for the benefit and protection of his wife and his two children, and then proceeded as follows: "I do, therefore, make this my last will and testament, giving and bequeathing to my wife, Caroline, all of my property, real and personal, * * * 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 that the widow took an absolute title to all of the testator's estate; that it was not intended by the words succeeding to limit or cut down the absolute gift, and that there was no trust created. In Lawrence v. Cooke (104 N.Y. 632), after a gift of the residuary estate to the testator's daughter and to her heirs and assigns forever, the following words were added: "I commit my granddaughter * * * to the charge and guardianship *Page 296 of my daughter. * * * I enjoin upon her to make such provision for said grandchild out of my residuary estate * * * in such manner and 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 a suit by the granddaughter, it was held that no trust was created, nor any charge upon the property given by the will to the daughter; that the legatee took an absolute title, and the provision made for the granddaughter was left wholly to her discretion as to the amount and manner, as well as the time when it should be made, and that this discretion could not be interfered with by the court. In Matter of Gardner (140 N.Y. 122) the testator gave his residuary estate to his wife, to have and to hold the same and every part and parcel thereof to her and her heirs forever, provided, however, that if any part of it should remain unexpended or undisposed of at her death this he gave to his son, his heirs and assigns. Following this was an expression of the testator's expectation and desire that his wife should not dispose of any of the estate by will in such a way that the whole that might remain at her death would go out of his "own family and blood relations." The testator had but one child, a son by a former wife. The widow died, leaving a will which disposed of so much of the residuary estate as remained at her death, giving a large portion thereof to the son and also one-fourth of her residuary estate, after the expiration of a life estate given therein, and another fourth to the sister of her husband. It was held that the estate of the wife was not limited or qualified by the concluding paragraph expressing the testator's expectation and desire. In Clay v. Wood (153 N.Y. 134) the testator gave certain real and personal property to his wife, to have and to hold unto her and her heirs, executors, administrators and assigns forever, and legacies to others which were declared not to be a charge upon the property given to the wife, and then gave all the residue of the estate to the wife and to her heirs, executors, administrators and assigns forever, followed *Page 297 by these words: "And it is my desire and request that my said wife do sustain, provide for and educate Lucretia, the daughter of my said adopted daughter Josephine, and it is my further desire and request that my wife do make the said Lucretia, Josephine, and my nephews and nieces, the children of my brothers C. G., joint heirs after her death in the said estate which, by this will, I have bequeathed to my said wife." It was held that the testator intended an absolute gift to the wife, except the legacies to others, with an absolute right of disposition, and that such gift was not qualified by the subsequent precatory clause, and that, hence, no trust or power in trust in favor of the persons mentioned in that clause was created thereby. I think the doctrine of these cases is decisive of the question now before us. It seems to me impossible to make any sound distinction between the case at bar and those referred to. The judgment in this case cannot, as it seems to me, be sustained without overruling the legal principle which has been so long and so often enunciated by this court.
It appears from the record that the plaintiff did, after the death of her husband, exercise her discretion under this clause of the will and contributed for the plaintiff's benefit in each year a sum averaging something less than $200. It has been held, however, thus far, that the defendant has substantially disregarded this provision of the will by the payment of so small a sum. While I am of the opinion that, under the law of this state, the defendant's discretion was left entirely unfettered by the terms of the will, and that no court has any right to prescribe the time or manner in which it shall be exercised, yet there is a feature of the case that might possibly permit a modification of the judgment without overthrowing the principle of the cases already referred to. On the trial of this case the defendant stipulated in open court that she was willing to be bound to the exercise of the discretion enjoined by the will to the extent of $400 per year. I think that, under the circumstances, the court had the power to hold her to this stipulation and I would be in favor of modifying the judgment *Page 298 accordingly; but there is no other ground, I think, upon which the plaintiff's claim to share in the estate, as a matter of absolute right, can be sustained without disturbing settled rules of law. Unless the judgment can be so modified it should be reversed and a new trial granted.
HAIGHT, VANN and LANDON, JJ., concur with BARTLETT, J., for affirmance; PARKER, Ch. J., and MARTIN, J., concur with O'BRIEN, J., for reversal.
Judgment affirmed.