The deed of trust is contractual in form, and the parties thereto are Edith S. Palmer, thereinafter called the settlor, the First National Bank of Yonkers, the trustee, and Edith Palmer Hart, a sister of the settlor's husband. It is expressly made in consideration of the release by Edith S. Palmer of all her right, title and interest in certain property. The purpose of the deed is recited in the preamble: "Whereas the party of the first part desires to create a trust fund for the use, support and benefit of the persons hereinafter mentioned." The persons thereinafter mentioned in the deed of trust are Edith Palmer Hart, Leslie R. Palmer, the settlor's husband, and Wayne Palmer, the settlor's son.
To carry out the purpose set forth in the preamble, the settlor has by the deed of trust conveyed certain property to the trustee, to be held "during the natural lives of said Edith Palmer Hart and of Wayne Palmer, son of said Leslie R. Palmer, or the survivor of them." The settlor irrevocably parted with the ownership of that property. After termination of the trust, the property could in no event revert to the settlor. The provisions in the deed of trust for the disposition of the income are set forth and summarized in Judge KELLOGG'S opinion. There is no need to repeat them here. None of the income is reserved in any contingency for the settlor. Express provision is carefully made for the division of the income, so long as either Edith Palmer Hart or Leslie R. Palmer survive. So long as Edith Palmer Hart remained alive, she was to receive the sum of $1,500 each year. So long as Leslie R. Palmer remained alive, he was to receive the remainder of the income during the continuance of the trust, after deducting the insurance premiums on policies on his life in favor of Wayne, his son. If Leslie R. Palmer should die before Edith Palmer Hart, the income payable to him was to go to Wayne, if living, or to his lineal descendants per capita. There is no express provision for the disposition of the income in case Leslie R. Palmer *Page 17 should survive Edith Palmer Hart and die before his son, Wayne Palmer. The problem presented is whether there is an implied provision that after the death of both Leslie R. Palmer and Edith Palmer Hart the entire income should be paid to Wayne Palmer, the only surviving beneficiary named in the deed of trust.
The trust remains in existence during the lifetime of Wayne Palmer. During the existence of the trust the trustee must pay the income to someone. To whom that income shall be paid depends upon the construction of the deed of trust, read in the light of the surrounding circumstances. If, so read, the intention of the settlor, to provide that in every contingency the income payable to Leslie R. Palmer during his lifetime should be paid after his death to his son Wayne Palmer, clearly appears, then that intention must be given effect. On the other hand, if the deed of trust does not provide either in express terms or by fair implication that the income of the trust should be paid to Wayne Palmer, in the event that Leslie R. Palmer survives Edith Palmer Hart but dies before Wayne Palmer, then that income is undisposed of during the life of Wayne Palmer and must be paid in accordance with the provisions of law governing undisposed income.
I concede that we cannot dispose of the income in accordance with our own view of what the settlor would have intended if she had thought of this contingency, unless that intention is disclosed on the face of the instrument itself. I concede further that we cannot transpose names, as suggested by the Appellate Division, in order to arrive at the intention. We transpose words or names or clauses only for the purpose of giving grammatical expression to an intention that otherwise appears from the instrument itself. The courts cannot rewrite instruments; their function is confined to construction. None the less, when an intention clearly appears on the face of the instrument, the courts should not defeat that *Page 18 intention by any rules of grammar or rhetoric. Here it seems to me that the trust deed itself by clearest implication declares the intention of the settlor that her son should have the income during his life.
The recital in the deed shows that the trust was for the benefit of three named beneficiaries. The settlor expressly provided for the share of the income which Edith Palmer Hart should receive during her lifetime. The settlor made express provision for the income which Leslie R. Palmer should receive during his lifetime, and that if he died before Edith Palmer Hart the share of the income payable to Leslie R. Palmer should be paid to his son, Wayne Palmer. Thus there is express provision for every contingency except the one contingency that during the continuance of the trust both Edith Palmer Hart and Leslie R. Palmer would die. The settlor could hardly have overlooked that contingency, for the trust could not terminate until the death of Wayne Palmer, and the other beneficiaries were Wayne Palmer's father and aunt. It is inconceivable that the settlor should have forgotten that this contingency might happen when she made the deed of trust. Failure to make express provision for the payment of income in that contingency loses significance under these circumstances. The settlor provided expressly only for the contingencies which would postpone enjoyment of income of the trust in whole or in part by Wayne Palmer until both aunt and father were dead. There was no need for express provision after the death of both, for the whole deed of trust is instinct with the intention that except as provision was made for the other specified beneficiaries, both principal and income should go to Wayne Palmer. Even without the provision for the payment of "premiums on policies of insurance on the life of Leslie R. Palmer for the benefit of said Wayne Palmer, son of Leslie R. Palmer, said policies being in the sum of $30,000, and the amount thereof to be added to this trust fund upon the death of Leslie R. Palmer," that *Page 19 intent would be plain. With that provision, it seems to me there can be no possible basis for other construction of the deed of trust.
For these reasons the judgments should be affirmed, with costs.