This action was brought to have a clause of the will of Mary J. Martin judicially construed; by which a share of her estate upon the decease of a child, for whose benefit during his life it was to be held in trust, was given to testatrix' "unmarried daughters in equal shares." The Appellate Division has certified the question for our review whether the clause should be construed "to include all of the daughters of the testatrix, who were unmarried at the date of her death, or only such of them as were unmarried at the date of the death of her son, the life beneficiary." Upon this question the learned justices of that court have divided in opinion; the majority holding that only the daughters unmarried at the time of the death of her son were intended and reversing, thereby, a decision of the court at Special Term, sustaining the other contention. It must be conceded, therefore, that the question is one which admits of serious argument for the one, or the other, view.
As the will is constructed, I think it is quite possible to discover strong evidences of a testamentary intent, which becomes clear, when we consider, in connection with the provisions of the will, the situation of the family. At the time of making her will, in 1894, the testatrix was a widow. She had several children; a son, who was feeble-minded and unable to take care of himself, and six daughters, the oldest of whom was married. The ages of the five unmarried ones ranged from 19 to 31 years. Two years after executing the will, the testatrix died, leaving a large estate, and, at that time, there had been no change in the family relations by other marriages. The son died in 1908 and intermediate the mother's death and that event three daughters had married. If the contention of the plaintiff, appellant here, is correct, then the distribution of the son's share should be made to *Page 162 and among her four sisters and herself, who were unmarried at her mother's death, and that contention, as it is claimed, is supported upon the theory that the gift of the share to them was immediate and its enjoyment in possession, merely, postponed. The plan of the will is not involved in any obscurity. After providing for the payment of debts, by the second paragraph, the testatrix gives all of her property to her executors and trustees upon certain trusts. In the first subdivision of the paragraph, she declares it to be her "wish that her unmarried daughters, or such of them as desire to live together, with my son John C. Martin, shall live in one household, whether at my present home, or elsewhere." She directs the house in which they had been living to be kept in repair and the taxes and insurance to be paid, during the lives of the two youngest of her surviving daughters, "but only so long as any of my daughters remaining single may choose to make it their home." A trust fund of $20,000 is to be reserved; the net income of which is to meet those expenses. She further provides, if her "unmarried daughters, or such of them as desire to live together with my son," prefer to live elsewhere, that her house and the fund for its maintenance, if already reserved, should fall into the residuary estate. Thereupon, "for the purpose of providing a suitable residence" for them, a fund of $50,000 was to be set apart from the residuary estate, or, if after its distribution, from the proceeds of the sale of the house, during the lives of the two youngest of her daughters, which was to be applied to the purchase of a satisfactory residence; the balance unexpended to be invested and the income to be used in meeting the expenses of keeping the house in good order and in paying the taxes, insurance, etc. Upon the death of the survivor of her two youngest daughters, the house and the trust fund were to be "divided in the same manner as her residuary estate." The contents of the "home," thus provided, were to be divided among her surviving children equally. In the second subdivision of the paragraph, she creates a trust for the benefit of her son, during his life, in one share, "which *Page 163 share shall be the proportionate part which he would receive of my estate, in view of the number of my children who may survive me and of my children who may have died before me leaving lawful issue me surviving." She directs the net income of the share so held in trust to be applied to her son's use and for his proper support, and then follows the clause under consideration, which reads: "and upon the death of my said son I give, devise and bequeath the said share to my unmarried daughters in equal shares." Before the execution of the will, the word "unmarried" was substituted by the testatrix in the draft for "surviving." Finally, in the third subdivision of the second paragraph, she provides that the residue of her estate should be held in trust during the lives of the two youngest of her surviving daughters, but not beyond the period of ten years, and that the net income should be paid in equal shares to her children, "except her son John;" the share of any deceased child to be applied to the use and support of her issue, if any, surviving. Upon the expiration of this trust, the trust estate is given to her "children, (other than her son John), in equal shares, per stirpes."
From this review of the testamentary provision made for the children of the testatrix, it appears that in two respects, only, does she make any distinction between them in disposing of her estate. Her son's share is to be held in trust and she makes the disposition of it upon his death. For him and her unmarried daughters she provides for the maintenance of a common home, and the unmarried daughters are to have the son's share upon his death. The reason in each case would seem to be clear. The son was unable to take care of himself and the daughters, who were unmarried, would not have that protection and the additional means for support, which marriage is usually presumed to bring. These cases, evidently, appealed to the mother's mind in making her will and her provisions should be read in that light. That she carefully considered her words appears from the erasure in the draft of the word "surviving," in the clause which disposes *Page 164 of the son's share in favor of her daughters, and the substitution of "unmarried." I think the circumstance has its significance. "Surviving daughters" might have comprehended all of her daughters, who outlived her son, and that, evidently, she did not intend. In changing the expression to "unmarried daughters," she limited the number of those who were to take and the question of the case arises: to what time did the word "unmarried" refer? In my opinion, the plan of the will, its language and the situation point to the son's death as the event in time, which was to determine what daughters should take; that is to say, those at that time unmarried. In the work of judicial construction, we cannot, of course, predicate certainty of our conclusions as to intent. At the most, we can, and we should, give that construction to a will, which has "in its favor the balance of reasons and probabilities." (Weeks v. Cornwell,104 N.Y. 325, 336.) Precedents and rules, frequently, have but slight value in interpreting wills; for those instruments are rarely, and, in the nature of things, are not likely to be, similar in terms. When the testator's intention is obscure, resort to them may be helpful in ascertaining it. 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. It may well be that some of the rules of construction require a greater force of intention to control them; but if it be found in the instrument, it should be followed. This will furnishes, in my judgment, a case of such force of intention as to make it more probable, if not certain, that, in the clause under consideration, testatrix was referring to the son's death as the period for ascertaining the persons, who should be entitled to take his share. The words "upon the death of my son" are, of themselves, not controlling; but when read with the context of the whole second paragraph of the will, they appear to have a determinative power of definition.
As it has been suggested, perfect equality was intended *Page 165 between the testatrix' children; except as to the restriction upon the son's possession of his share, the eventual right thereto of the unmarried daughters and the provision for a home for them. The distinction in favor of unmarried daughters must be carefully noted. They were of marriageable age and their mother shows her appreciation of the fact; for, in providing for the maintenance of the home, it is to be "only so long as any of my daughters remaining single may choose," etc. When any one of them married, she ceased to be entitled to the benefit of that provision. During the trust period, the unmarried condition of the daughter determined her right to share in the provision for the home. They and the incompetent son were to live together in the house and that situation is carried along in the mother's mind, by clear inference from the language, and influences her in preferring those of her daughters who are still unmarried upon his death as donees of his share. It is very significant that, while the trust provision for the maintenance of a home ceases with the termination of the trust period, the testatrix contemplates that the son and unmarried daughters will continue to live together. In directing an equal division of the proceeds of the sale of the house and trust fund, she adds a direction that "all the contents of such house shall be at the disposal of my said daughters, so long as they, or any of them, have a home together, (with my son John C., if still living)." This bears strongly upon the probability of her intending only those unmarried daughters to take the son's share, who remained single at his death; as an exceptional provision in their behalf.
The appellant's argument that the clause in question should be construed as giving his share to the daughters unmarried at the time of the testatrix' death suggests conclusions, which are inharmonious with her general plan for equality of division, and these have been well illustrated by counsel for the respondents. The testatrix contemplated that her unmarried daughters might marry and that might be, of course, either before, or after, her death. Adopting the appellant's contention, she must have meant to exclude a daughter who might *Page 166 marry a month before her death and to include one who might marry the month after. I cannot think that she intended to make so unreasonable a distinction; it is too improbable. Again, adopting the appellant's contention, where is the reasonableness of cutting off testatrix' oldest daughter, who was married when she made her will? Nothing was proved, which would justify inferring an intention to deprive her of the right to share with her sisters upon the falling in of the son's trust estate, if those marrying before his death were to share in it. Assuming the testatrix to have supposed that no other daughter would marry before she died, would she then have intended her son's share to go to her daughters who were unmarried at her death and to cut off the married daughter? Why should daughters marrying after her death be entitled to the son's share and not the previously married daughter? When tested by the results possible under the appellant's contention, I am brought to the conclusion that it is unsound and that it is opposed to the general plan of the will.
It is not necessary to hold that a bequest was intended to a class, whose members existing at the time of the happening of the event specified, alone, may take; it is only necessary to decide that the intention of the testatrix, in disposing of the son's share, is manifest to make an exception to the general plan of equality upon which she had distributed her estate, in favor of those daughters surviving their brother, who had remained single. She gives his share upon his death to her daughters then unmarried; because the same need would still exist for exceptional consideration that appears to have moved her previous provisions. It would be difficult to find a reason, having any support in the testamentary plan, for construing the gift as one to the daughters unmarried at her death, and, as it has been suggested, it would create a distinction against her previously married daughter, not warranted by any facts proved with reference to her, or to her family and worldly relations. She was married and that is all we know. There is no need to have resort to any rules of *Page 167 construction; for the rule of intention overrides all such. It is only where the will fails to express, or to disclose, an intention that we must resort to the rules, which the decisions have established. (Matter of James, 146 N.Y. 78, 100.)
I do not think that there was any vesting of the remainder in the son's share in the daughters unmarried at the death of the testatrix. If vested interests, they would, nevertheless, be subject to be divested by marriage before the son's death. If the particular form of words was to be considered, I should find no great difficulty in finding the intention to be to give the share to the daughters unmarried at the death of the life beneficiary; to which conclusion the fact of the substitution of the word "unmarried" for "surviving" in the clause comes in aid. (SeeTeed v. Morton, 60 N.Y. 502; Matter of Smith, 131 ib. 239;Lyons v. Ostrander, 167 ib. 135, 140.)
Nor does the suggestion that there was any condition in general restraint of marriage appear to me to have any force I find no condition, directly or indirectly, imposing any absolute injunction to celibacy. I cannot discover any condition in terrorem, or any purpose to impose any restraint on a daughter's marriage. There is no bequest upon condition that her daughters should not marry; or condition subsequent, the breach of which might work a forfeiture of interest. If the bequest had been "upon the death of her son to her unmarried daughters, or, in the event of any one marrying, then to those remaining unmarried," we would have a different case. Such a case would show an intention that those unmarried at the death of the testatrix were to take their brother's share; provided none married meanwhile. We have no such case; but, merely, one where the testatrix, in disposing of her son's share, at his death, made a distinction between her daughters, as conditions existed at the time, and gave it to those then unmarried — a distinction, as before discussed, influencing her previous provisions. There is no evidence of an intention to prevent their marrying and, unless such an intention shall clearly appear, a will should not be construed as imposing *Page 168 any such condition, upon reasoning as to the possible effect of a gift, made as was the one in question.
In a note on page 276 of the 13th edition of Story's Equity Jurisprudence, the learned editor discusses, with considerable elaboration, this rule which was taken from the civil law by the ecclesiastical courts. He reasons that, when the law and chancery courts came to look into the intention of the testator, the virtual abandonment of the Roman rule was reached. I quote: "when at last English judges reached the point of declaring that the real question in a particular case was whether a testator intended to discourage marrying or not, (Jones v. Jones, 1 Q.B.D. 279, 281, BLACKBURN, J.), and to decide the case as inJones v. Jones, upon the answer to that question, a step only remained to declaring that the donor's intention should govern." He finds in the American cases, a disposition "against adopting broadly the doctrine that conditions in restraint of marriage are void," and continues, "the result is that where the courts can discover in the written instrument * * * any other intention than that of a clearly designed discouragement of marriage, they will respect that intention. * * *. When it has come to this, that nothing is left of the Roman rule except where a clear design to discourage marrying is expressed, as held in Jones v. Jones, — where, though the obvious and natural effect of a particular gift is to prevent marriage, that fact is disregarded unless there is a plain and real intent, — it seems quite time * * * to drop a rule altogether which never had a sufficient reason for its existence in the English law, and to permit the case to stand on the donor's intention, whatever it may be. Indeed the reasoning of the better authorities comes quite to this result. (Stackpole v. Beaumont, 3 Ves. Jr. 89; Commonwealth v.Stauffer, 10 Barr. 350.) * * * When, however, the intention is found, it is submitted as a legitimate conclusion of the reasoning of the judges against the Roman rule, if not as the natural effect of the cases themselves, that that intention should be allowed to prevail." I think the view taken of the rule commends *Page 169 itself to the judgment, as having the weight of reasoning in its favor.
For these reasons, I think the order should be affirmed and that the answer to the question certified should be that the gift to the unmarried daughters included only such as were unmarried at the date of the death of the life beneficiary.