
    In the Matter of the Judicial Settlement of the Estate of Charles W. Wyatt, Deceased.
    
      (Surrogate’s Court, Orange County
    
    
      Filed June, 1894.)
    
    1. Will—Construction.
    Where a conditional power of disposal is given to the first legatee, a remainder over is not repugnant.
    
      2. Same.
    Where a legacy is given to a class of persons, distributable at a time subsequent to the death of the testator, all persons answering to the description of the class, at the time for the destribution, are deemed to be objects of the gift and entitled to a share.
    The testator, Charles W. Wyatt, of the town of Xewburgh, died in the fall of 1892, leaving him surviving his wife, Mary J. Wyatt, but no children or descendants of a child or children. He was also survived by two sisters, Mercy Dryer and Eunice Dougherty, each of whom have several children, nephews and nieces of the testator. The testator was also survived by a large number of nephews and nieces, the children, respectively, of five deceased- brothers and sisters. The will of the deceased, dated Masch 8, 1892, and a codicil, dated September 8, 1892, were duly admitted to probate by the surrogate’s court of Orange county, and upon this accounting a construction of the third and fifth paragraphs of testator's will is asked, and it seems to the court necessarily required.
    The testator first gives all the household furniture, beds, bedding, dishes, silverware, etc., to his wife absolutely. Then a bequest of $800, upon the death of his wife, is made to testator’s nephew John W. Beid. This bequest is changed in the codicil, but only in amount. Five hundred dollars, instead of $800, is to be paid to said nephew on the death of testator’s wife. The third and fifth paragraphs, upon which an construction is asked, are as follows:
    
      “Third. All the rest, residue and remainder of my property and estate, real and personal and mixed, of every nature and kind, and wherever situated, I give, devise and bequeath to my dear wife, Mary Jane Wyatt, for and during the full term of the natural life of my said wife, to have, hold, use and enjoy the rents, issues and income thereof, and if she shall need the personal property of which I may die seized for her comfort, maintenance and support, she may use the whole or any part of it therefor.”
    
      “Fifth. On the death of my wife, I give, - devise and bequeath all the,personal property of which I may die seized, not herein-before given and bequeathed, and including such part of my personal property as my dear wife shall not have used up for her necessities, to the children of my dear wife’s deceased sisters, equally, share and share alike, so that each one of our said nephews and nieces shall take an equal share. In case any of our said nephews and nieces are dead, leaving child or children, the share which such nephew or niece would have taken, if living, shall go to his or her child or children equally, share and share alike. My said nephew Albert G. Wyatt, and my nephew John W. Beid, are excluded from and shall not take under the provision of this, the fifth clause of my will, as I have specifically made provision for them hereinbefore; neither shall their children take under this clause, if they or them die before my dear wife; and the share which my nephew Charles W. Dewitt would take under this clause of my will shall go to and I give the same to his dear children, William E. Dewitt and Anna T. Presler, equally, each one-half of it; and in case of their death, or the death of either of them, then to their children equally, each branch of children taking the parent’s share.”
    The personal estate left by testator, after payment of debts, etc., amounts to $6,000, or thereabouts. Mary J. Wyatt, the widow of testator, died in October, 1893, leaving a will which has been duly admitted to probate.
    
      
      Warner M L. Ward, for accounting executor; James Q. Graham, Jr., for executors of Mary J. Wyatt, deceased, and for several nephews and nieces of said deceased, and special guardian of 0. Maud Ooutant, a minor; Seward TJ. Bound, for Chas. W. Dewitt, Win. E. Dewitt and Anna T. Presler, and special guardian of Ida Dougherty, a minor; William M. Terpening and T W. Tompkins, for other minors.
   McElroy, Sp. S.

—There is no connection, except in one particular, between the third and fifth paragraphs of this will. The latter becomes operative only after the complete enjoyment of the former, and our attention will be given to the questions submitted in the order in which the paragraphs appear in the will.

It is claimed by the executors of the estate of Mary J. Wyatt, deceased, that the whole personal estate of the testator, except such as was specifically bequeathed, passed to his wife, Mary J. Wyatt, absolutely under the third paragraph above and should be paid to the executors of her estate by this accounting executor, for distribution among the persons entitled thereto under the will of said Mary J. W.yatt. The reason alleged by the counsel for the executors of Mrs. Wyatt’s estate for this claim is that there was a power of entire user bequeathed to her in and by the said third paragraph of testator’s will, which was equivalent to a bequest of the personal property to her absolutely.

It is well settled that where an absolute power of disposal is given to the first legatee a remainder over is void for repugnancy, yet, if the right of disposition by the first legatee is conditional, the remainder is not repugnant..

This testator gives and bequeathes to his wife, for and during the full term of her natural life, the residue of his estate, real and personal, to have, hold, use and enjoy the rents, issues and incomes thereof, and if she shall need the personal property of which the testator may die seized for her comfort, maintenance and support, she may use the whole or any part of it therefor.

ín the wording of this will there is no absolute power of disposition of the personal estate given to testator’s wife. “ If she shall need the personal property of which I die seized for her comfort, maintenance and support, she may use the whole or any part of it (not absolutely, but) therefor.”

That sentence expresses to my mind a condition which must first be shown to exist before she is entitled to any part of the corpus of testator’s personal property absolutely. If she needs it for her comfort, her maintenance, hér support, or either of them, the wife of testator is then authorized to use the whole or any part of testator’s personal property therefor.

This must certainly limit the use of the corpus of testator’s personal property by his wife, if any ‘weight whatever is to be given to the words the testator uses as showing the state of affairs, the condition, that must exist before the right to use his personal property is to be exercised.

The reference counsel for the executors of Mrs. Wyatt makes to the fact that Mary J. Wyatt died within a year after the death of testator, and that she had not at that time, or the time of her decease, reduced the corpus of this personal property to her possession, will not be considered by me as affecting her rights in the least.

Suppose the executors of testator’s estate had paid the whole fund of personal property to Mrs. Wyatt, 1 think testator’s executors, and the residuary legatees under his will, would have had a right to be heard upon the settlement of her estate, and a claim by them as to the part of his estate which his wife had not used for her comfort, maintenance and support would have necessarily brought up this third paragraph of testator’s will for construction in that proceeding. Nor is it necessary at this time to consider the question raised as to the validity of this trust. If that point is urged, it seems to me that the case of Matter of Grant, 40 St. Rep. 944, is in point. There the will of testator gave his wife the right to possess and enjoy the rents and profits of his estate during her life, and that, if they were not sufficient for her support, a sale might be had, with remainder over after her decease. No trustee was provided for. Held, that the widow was entitled to the possession of the corpus of the estate. * * * Besides, it appears to me that the provisions of testator’s will place his estate within the rule that a trust will be implied in executors when the duties imposed render the possession of the legal estate in the executors reasonably necessary, although it may not be absolutely essential to accomplish the purposes of the will, when such implication would not defeat, but would sustain the disposition of the will. Tobias v. Ketchum, 32 N. Y. 329; Vernon v. Vernon, 53 id. 357; Morse v. Morse, 85 id. 53; Roberts v. Corning, 89 id. 226, 237.

I have carefully examined the cases cited by counsel for the executors of Mrs. Wyatt, also the statutes in reference to powers, but am of the opinion that the various provisions in the wills therein construed are not in point or accord with the disposition this testator desired to make of his property.

In Campbell v. Beaumont, 91 N.Y. 464, the property of testator was devised to his wife for her sole use and benefit, accompanied by a clause that it was the testator’s will and desire that whatever remained at the decease of his wife should be received and enjoyed by her son Charles. Held, that the widow took an absolute title unaffected by the provision for her son.

In Crain v. Wright, 114 N. Y. 307; 23 St. Rep. 245, the will gave land to the widow, “ to have and to hold for her benefit and support.” Held, that no intent was discoverable to pass less than á fee.

In Hart v. Castle, 30 St. Rep. 701, a father gave the residue of his estate to his sons and daughters, their heirs, etc., to be equally divided, and then provided that if either of the daughters should not leave children at her decease, her share should descend to her brothers and sisters, but that said daughters should have “the right to use and manage their shares in such manner as they shall severally choose, and, if the income thereof shall be insufficient for their comfortable support, they may use as much of said share as may be necessary.” Held, that an absolute power of alienation of the real estate was devised.

In each of the foregoing cases, as well as others cited by counsel in his brief, which I have examined, the wording is so different from testator’s will that I fail to see how the rules of construction set forth in those cases can be followed in this case.

The case of Van Horne v. Campbell, 100 N. Y. 287, construes a will drawn before the enactment of the Revised Statutes and under the provisions of the common law.

The rule of construction as herein set forth has been changed by the Revised Statutes. 3 Revised Statutes (Banks’ 7th ed.), 2178, is as follows :

“ § 32. No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate * * * by disseisen, forfeiture, surrender, merger or otherwise.
“ § 33. The last preceding section shall not be construed to prevent an expectant estate from being defeated in any manner, or by any act or means, which the party creating such estate shall, in the creation thereof, have provided for or authorized; nor shall an expectant estate, thus liable to be defeated, be on that ground adjudged void in its creation.”

It seems to me that the estate intended to be created here, after the life estate of testator’s widow, was a contingent future remainder, and, under the above provisions of the Revised Statutes, was such an estate as the testator had the right to create, and when the defeating contingency had been rendered impossible, to-wit, the death of Mrs. Wyatt without having used any part of testator’s personal property for her comfort, maintenance and support, then the remaindermen, representing the class mentioned in the fifth paragraph above, were entitled to possession.

It seems to me that it was clearly the intention of the testator to limit the use of the corpus of his personal property to the actual needs of his wife, and all doubt as to this view not being his intention is overcome by the third clause of testator’s codicil, which is as follows: “I give, devise and bequeath to-my dear wife, Mary Jane Wyatt, the sum of five hundred dollars ($500) absolutely for herself, her heirs and assigns forever, in addition to what I give her by my said will." This leads us naturally to ask, what had testator given his wife by his will.

Can there be any doubt as to what he supposed he had given her before this codicil was made, viz., the rents, issues and income of all his estate, real and personal, for her natural life, with the right to use the whole or any part of his personal property if she should need it for her comfort, maintenance and support. If the testator had intended this bequest in his will to have been 'an absolute gift of all his personal property, what reason could he have had in attempting to give $500 more than his whole personal estate, and from what source would the $500 bequest in his codicil come?

While it is true that the widow is the one to determine primarily whether she needs any part of the corpus of this estate fa$? her comfort, maintenance and support, yet, I think that where a husband leaves his estate in this manner—practically under the control and enjoyment of his wife if her necessities require it— that to entitle the wife to the use of any part of the corpus of testator’s personal property there must be something substantial in her needs; that the word “comfort” should not be construed to mean “luxury,” or the words “maintenance and support” coupled with any possibility of doubt but what the circumstances of the beneficiary are such that a part of the fund or corpus of the estate is needed for that purpose. Such interpretation should only be given as the words in their ordinary meaning imply, the words “comfort, maintenance and support” meaning in each particular case that degree of comfort, maintenance or support which the testator in his lifetime bestowed upon his wife ; and I think it incumbent on the part of the first beneficiary, whoever it may be, to show that the actual condition exists whereby the right to use, and thus lessen, the residuary estate may be exercised.

My conclusions, therefore, are: “ That this testator gave his wife the use and income of his estate, real and personal, for her natural life, with the further right to use any part of his personal property, even to exhaustion, if she should need the same for her ' comfort, maintenance and support; that the balance of testator’s personal property remaining at the death of his wife (and in this case the whole of it), subject to the expense of administration and the costs on this accounting, is to be distributed, under a decree to be entered herein in pursuance to the foregoing, to those entitled as residuary legatees under the fifth clause of testator’s will, and hereinafter determined.

The portion of the fifth clause of testator’s will, upon which a construction is asked is as follows:

Fifth. On the death of my wife, I give, devise and bequeath all the personal property of which I may die seized, not hereinbefore given or bequeathed, and including such part of my personal property as my dear wife shall not have used up for her necessities, to the children of my deceased brothers and sisters and the children of my dear wife’s deceased sisters, equally, share and share alike, so that each one of our said nephews and nieces shall take an equal share. * * * ”

The words, “ including such part of my personal property as my dear wife shall not have used up for her necessities ” settle beyond a doubt the construction the testator placed on the third paragraph of his will, and the estate he intended his wife to enjoy thereunder, and strengthens our belief in the third paragraph as above. D

It appears by the testimony that at the time testator made his will he was survived by two sisters, five sisters-in-law and a large number of nephews and nieces, the children of two brothers and three sisters who were deceased. It also appears that there were other nephews and nieces to wit, the children of testator’s two living sisters, and the children of four of the living sisters of testator’s wife; that the testator was well acquainted and on intimate terms with his living sisters and the sisters of his wife, and their families respectively. It is contended on the part of the nephews and nieces of the living sisters of testators wife, that inasmuch as the testator knew that all his wife’s sisters were living, the word “ deceased " in the sentence “ the children of my dear wife’s deceased sisters,” should be stricken out as carrying a disposition contrary to the intention of testator, or else transposed and the sentence made to read, “ the children of my dear (deceased) wife’s sisters,” and a like request is made that ,the word “deceased” in the sentence “ to the children of my deceased brothers and sisters” be stricken out, or the words “ and living ” interposed, so that the sentence may read, “to the children of my deceased (and living) brothers and sisters.”

The fact of making a will always raises a strong presumption against any wish of the testator to have his estate or any part of it enjoyed by those other than the ones named or included in a class mentioned and described in his will, and while it is the duty of tire court to put such construction upon the various clauses of a will as will effectuate the general intent of the testator, and to that end transpose words and phrases, insert or leave out certain words or provisions if necessary, yet this can only be done in aid of the testator’s intent, and not to make in whole or in part a new will.

If the testator had intended to include all his nephews and nieces, and his wife’s nephews and nieces, in the class entitled to receive the residue of his personal property at the death of his wife, it seems to me that he would not have used the language he did, but would have prepared a simple sentence; one that could admit of no question as to his intention, and in substance, at least, as follows: Upon the death of my wife I give and bequeath all my personal estate remaining to my nephews and nieces and the nephews and nieces of my wife—or all our nephews and nieces— equally, share and share alike.

The testimony shows that this testator’s will was drawn from a full memoranda of the various paragraphs, and that this part of paragraph fifth was in his own language, and it is fair to assume that he knew the meaning of the word “ deceased,” and how to use it in a sentence to express his wishes, and that if He had intended a disposition other than the one expressed he possessed a sufficient degree of intelligence to have enabled him to do so ; besides, six months thereafter he makes a codicil wherein he ratifies and confirms this fifth paragraph of his will. The sentence in the fifth paragraph above evidently intending to show the persons and to what extent they severally shall take, is particularly blind, viz., “so that each one of our said nephews and nieces shall take an equal share.”

I cannot agree with counsel that the word “our” in that sentence should .be considered as controlling and showing that the testator meant the children of his - wife’s sisters as well as the children of his own brothers and sisters. I think the word “said” is the significant word in that sentence, and refers specifically to the class that had been previously designated—our said nephews and nieces; that is, “the children of my deceased brothers and sisters and the children of my dear wife’s deceased sisters.” The testator could have used the word “our” in that connection even though there were no children of his wife’s sisters, but in my view of his intention, as' expressed in this paragraph of his will, the word “our" was used by him to show his intention that the children of his wife’s deceased sisters (if any) were to be’ included at the time a final distribution was to-be made.

From a careful examination of all the bequests in testator’s will, it must be conceded that it was his intention to pass the enjoyment of his estate, after the death of his wife, to collaterals farther removed than his own sisters or his wife’s sisters, and I think the general rule which has been declared in many cases, that where a 'legacy is given to a class of persons, distributable at a time subsequent to the death of the testator, all persons answering the description of the clhss at the time appointed for the distribution are deemed to be objects of the gift and entitled to a share, applies to this case. Teed v. Morton, 60 N. Y. 506, and cases cited. And this rule applies whether the legacy (if to be enjoyed in the future) is vested or contingent. A testator may devote his gift to a whole class or restrict it to certain individuals of a class: to persons of á class living at his death, or to such persons and all others who belong to the class at the period of distribution. In this case the period of distribution was upon the death of testator’s wife.

I am, therefore of the opinion that the intention of the testator, as expressed in this fifth paragraph of his will, is as follows: Upon the death of his said wife the residue of his personal property, including such part as his wife had not used for her necessities, was to be divided among the children of his deceased brothers and sisters (except such as are named as not entitled to take), and the children of his wife’s deceased sisters, if any. As all of testator’s wife’s sisters were living at the death of testator’s wife, none of their children or the children of the two living sisters of testator, who also survived that, event, are entitled to be considered in 'the class of nephews and nieces representing the objects of testator’s bounty.

Two items in the account of the executor of Charles W. Wyatt, deceased, were objected to by counsel for the executors of Mrs. Wyatt’s estate.

The item of twenty-one dollars and. eighty-two cents for insurance upon the buildings on the real estate of testator, placed about four months before the death of Mrs. Wyatt, and the full premium for three years’ charges against her, is objected to, and it seems to me properly so. While it is true that testator’s wife had the benefit and use of this real estate for. life, yet there is no reason for this beneficiary paying the premium for this insurance for the full period, unless she had lived to enjoy its protection, and the accounting executor should only charge .the life beneficiary with a proportionate of part the amount of premium paid.

The item of twenty-five dollars and seventy-five cents paid by the accounting executor for the services of a trained nurse for testator’s wife, and charged by said executor against her. I think is properly charged.

The fourth paragraph of the will is in part as follows:

11 Fourth. On the death of my dear wife, I give, devise and bequeath the farm on which I now reside, consisting of about eighteen acres' of land, with * * * to my nephew Albert C. Wyatt, provided he shall board, care for and treat my dear wife as a son should treat a mothor, caring for her comfort and doing for her as she shall reasonably desire. * * * ” It appears from the testimony that the executor of Charles W. Wyatt’s estate, learning that Mrs. Wyatt was sick, called, and although he found that everything was being done for her by this devisee and nephew that he could do, yet the executor aforesaid believed that the experience of a trained nurse was needed, and he accordingly sent one to care for her, and by the services of this trained nurse she was benefited temporarily.

While it is true that Mrs. Wyatt might have reasonably desired that this nephew obtain the services of a trained nurse, the testimony shows that it was the act of the executor of her husband’s estate, who had funds in his hands belonging to her, and I fail to see, under the terms of testator’s will, that it was incumbent on the part of this nephew to furnish a trained nurse, at least, unless she had desired it.

The request of the testator is that his nephew shall board, care for and treat his wife “as a son should treat a mother.” The testator had no children, and he desired that his wife, after Ips decease, should have the care, protection and attention which a son gives a mother, and surely it is not customary for a son to furnish a doctor or trained nurse for a parent in sickness, unless probably where the circumstances of the mother are such that she could not pay for such services—a fact that did not exist in this case.

The item of twenty-five dollars and seventy-five cents will, therefore, be allowed as charged, and a decree entered in pursuance of the foregoing.

Decreed accordingly.  