
    Matter of the Judicial Settlement of the Account and Proceedings of Lynde Catlin and Henry G. Sanford, as Executors of Cora V. R. Catlin, Deceased.
    (Surrogate’s Court, New York County,
    October, 1916.)
    Trusts — creation of valid trust — equity — wills — trustees — guardians — marriage — evidence.
    While the naming of a fiduciary is not essential to the creation of a trust, a valid trust cannot be created by a last will unless there is something to indicate that the testatrix contemplated one of the class of active trusts permitted by the statute.
    To constitute a trust not charitable there must always be a definite person entitled to enforce the trust in equity, and in this ease the beneficiary must be ascertained or ascertainable from the language of the limitation itself.
    
      After numerous general legacies and the gift of $10,000 in trust to her goddaughter, testatrix by her will, prepared by herself, devised her real estate and the remainder of her personal estate to a nephew, her only heir at law and next of kin, and in case of his marriage or death the property devised to him was given in trust to the goddaughter, who was five years of age when the will was executed, and to her sister who died before testatrix. Held:
    That no trustee being named in the will and the nature of the trust to the goddaughter not being limited thereby she took the $10,000 as an absolute bequest and it' should be paid over to her general guardian.
    That testatrix having employed the technical term “ trust ” technical construction follows as a matter of course in the absence of clear intent to the contrary.
    That by the devise to the nephew he took first an estate in fee simple absolute which was not cut down by the subsequent doubtful language of the will.
    That the direction that,in the event of the marriage of the nephew the estate devised to him should go to another, being in general restraint of marriage, was void as against public policy.
    That there being no latent or patent ambiguity justifying their reception in evidence, the declarations of testatrix made after her will were incompetent to aid in its construction.
    Proceeding upon the judicial settlement of the account of éxecutors.
    Townsend Jones, for Lynde Catlin.
    Henry Gansevoort Sanford, for executors.
    John M. Shedd (John M. Shedd, of counsel), for infant’s general guardians.
    Taylor, Jackson, Brophy & Nash, for New York Graduate Medical School and Hospital.
    Stewart & Shearer for New York Public Library, Astor, Lenox and Tilden Foundations.
   Fowler, S.

In this proceeding to settle judicially the accounts of executors it is necessary for the purpose of distribution to construe the following paragraphs of the will of testatrix: To my goddaughter, Helen Neilson Edmonds, I give $10,000 in trust * * *_>> u rea¡ egtate and any remaining personal estate I leave to my nephew, Lynde Gatlin. In the event of his marriage or death at any time I give it in trust to my goddaughter, Helen Neilson Edmonds, and to her sister, Catherine Livingston Beade Edmonds.” An earlier proceeding for construction was dismissed (89 Misc. Rep. 93), but without prejudice to this proceeding, where construction is necessary, proper and jurisdictional.

It appears by stipulation and otherwise that testatrix, a spinster, when about sixty-eight years of age, prepared her own will. Her only next of kin and heir at law was her nephew, Lynde Gatlin, mentioned in the will. Helen Neilson Edmonds, referred to in the will, was a cousin and goddaughter of testatrix and about five years of age when the will was executed. Catherine Livingston Beade Edmonds was a sister of Helen Neilson Edmonds and she died 30th of September, 1908, or before testatrix. Letters testamentary were issued to Lynde Gatlin and Henry G-. Sandford 18th of August, 1914, shortly after the death of testatrix. The will contains numerous general legacies to various societies and charities and to friends of the testatrix. One of the legacies is the sum of $10,000 given to The Christian Helpers Home of Brooklyn, N. Y.,” in memory of Catherine L. B. Gatlin, a sister of the deceased. The Christian Helpers Home has no existence, corporate or otherwise, now, nor did it have at the time of the death of the testatrix.

In aid of construction certain declarations of testatrix were offered in evidence over objections to which I shall hereafter allude, as the validity of such objections was reserved and is submitted to me for decision by the terms of the stipulation, which is a part of the record herein. Helen Neilson Edmonds appears by her general guardian, who has filed objections to certain items paid for taxes as set forth in Schedule C-l. But as the main controversy in this proceeding relates to- the construction of the will and not to such objections their consideration will be deferred until I proceed to construction.

The opposing contentions concerning construction are substantially as follows: Lynde Gatlin urges that the entire residuary estate belongs to him in fee and without qualification. He is not concerned in the pecuniary bequest of $10,000. Helen Neilson Edmonds urges that the estate, or interest given to Lynde Gatlin amounts to a life interest only, and that it is subject to defeasance upon his marriage, and that "the entire remainder interest in the residuary estate, real and personal, including the share which her sister would have taken had she survived the testatrix, passes to her. It is also urged in her behalf that the bequest of $10,000, though stated to be “ in trust,” is without restriction and an absolute bequest of the legal interest. The executors are indifferent to the contentions, but desire to have their duties made clear.

The intention of "the testatrix in stating that she gave $10,000 to Helen Neilson Edmonds in trust is questioned by counsel. Certainly if testatrix intended to create a valid trust, permitted by our statutes, she did not employ the proper means. The nature of the contemplated trust itself is not limited by the will and no trustee is mentioned. While it is true that the naming of a fiduciary is not essential to the creation, of a .trust, a valid trust cannot be created unless there is something to indicate that the testatrix contemplated one of the class of active trusts permitted by our statutes relating to trusts or powers. To read such an intention into the will demands an unwarranted interpolation. Probably the only limitations which the testatrix intended to impose were those associated with any gift to an infant. She probably believed that the infant’s guardian would hold this money in trust during the infancy of Helen Neilson Edmonds. The will, I conclude, must be construed to pass an absolute bequest of $10,000 to Helen Neilson Edmonds, which the decree may provide should be paid over to her general guardian. I am led to the conclusion that no statutory trust or power in trust was created by several familiar principles, not alluded to by counsel probably because so familiar. The principle is that to constitute a trust not charitable in nature there must always be a definite person, entitled to enforce the trust or power in trust in equity, and this beneficiary must be ascertained or ascertainable in this instance from the language of the limitation itself. So the trust purpose of a noil-charitable donation must be clearly worked out by the settlor, or else a court of equity cannot enforce it. When a layman drafting her own will employs the technical term “ trust ” its construction is subject to no enlargement because the draftsman and settlor is a layman. When testatrix resorted to the technical phrase “ trust,” technical construction follows as of course in the absence of all clear intent to the contrary. I am confirmed in this because at common law when property was given to one as trustee, no beneficiary being ascertained and no trust purpose defined, the so-called trustee took absolutely if the estate were a fee and if a life estate he took for his own life. I will next proceed to the quantum of Mr. Lynde Gatlin’s freehold estate. This is to be determined primarily by the intention of testatrix as deduced from her language contained in the devise to him.

If proof that testatrix unaided drafted her own will were necessary other than that contained in the stipulation, it is found in the clause last referred to above. The residuary clause also proves it even more emphatically and presents a marked instance of a difficulty occasioned by the attempt of the testatrix to draft her own will. A person more familiar with legal formulas or the law of estates, would not have drafted the limitations of estates or interests as she did. Some care would have been observed, certainly, in pointing out the duration of the estate which Lynde Gatlin was to enjoy. The various parties in presenting their contentions seem to rely upon well-settled rules of construction. But in approaching a question of the intention of testatrix’s will it does not strike me as orderly to assort the various rules of construction and first to pick one which fits the aims of the clients. Buies of construction are primarily and ultimately only aids for construing ascertained intentions. Robinson v. Martin, 200 N. Y. 159. We must first ascertain the intention of the testatrix, irrespective of results, and then proceed to construction by the application of settled rules construing the effect of an ascertained intention. Becourse to rules of construction ordinarily should be had only when there is some obscurity in the language and meaning of a will. As I had occasion to hold, construction begins when interpretation ends. Matter of Kathan’s Will, 141 N. Y. Supp. 705.. The converse method is illogical. Buies of construction bearing on estates should not be invoked in the first instance to ascertain intention. An intention not clearly expressed is not to be tested by rules of construction bearing on the quantum of estates. Cam mann v. Bailey, 210 N. Y. 19; Fulton Trust Co. v. Phillips, 218 id. 573, 583. Otherwise in nearly every instance difficulty would be created rather than elucidated. Having in mind that it is the paramount intention of the testatrix which is to be first sought, in so far as the same can be gathered from the text of the will, before calling in aid rules of construction, it does not seem plain to me that Cora V. E. Catlin, the testatrix, intended that her nephew should only have an estate during his life, subject to an earlier termination in the event of his marriage, and that the remainder should go to the two Edmonds children. It is apparent from the will itself only that testatrix meant to give Mr. Lynde Catlin some freehold estate. When a testator’s intention is not plainly contrary to the language of the will, the law presumes the intention to coincide with the language of the will. This being so, we may proceed to determine the quantum of the estate given to Mr. 'Catlin by the language actually employed in the will by this testatrix herself.

It is, no doubt, the rule that a will drawn by a layman is to be construed much as a layman would construe it. Overheiser v. Lackey, 207 N. Y. 229; Mee v. Gordon, 187 id. 400. But I think that I correctly stated the proper boundary of this principle when I said that, whenever a testatrix resorts to technical phrase, she is bound by the technical meaning of that phrase in the absence of an express and clear intention to the contrary. Now, no such intention to the contrary is here apparent. This being so, what is the construction of the language employed by testatrix which, as I said, must be presumed to coincide with her intention?

One of the most familiar old rules of the law of real property is that technical use of the term heirs ” is not necessary at common law to carry a fee to a devisee, but it is otherwise to carry a fee by a deed. This rule still applies to devises by the express terms of the Revised Statutes. But the rule would apply here without any legislation to that end. The word estate ” used simpliciter in a devise always implies, now as formerly, a fee simple or freehold estate. It is unnecessary to cite authorities for such a familiar principle. With this conclusion as a premise we may resort to the language of the will of testatrix: “ My real estate and any remaining persohal estate I leave to my nephew, Lynde Gatlin.” Had testatrix stopped there, no one could question that Lynde Gatlin took the estate of testatrix, or a freehold estate of inheritance in fee simple absolute. But testatrix did not stop there. She seems to have proceeded to qualify her donation by an additional distinct sentence, or, 'in other words, it is claimed that she resorted to the process known in law as ‘ ‘ cutting down. ’ ’ Certainly the meaning of the modification so made by testatrix is not so clear as could be wished. Consequently, even in the case of a layman, we are driven to the application of the ordinary rule of law settling the quantum of an ambiguous limitation of this character. The rule I refer to is in substance that the quantum of estates, once given absolutely by the terms of a devise, will not be cut down by ambiguous or doubtful language following the absolute donation or gift. Benson v. Corbin, 145 N. Y. 351, 359. There are a hundred other familiar adjudications to the same effect. Applying this rule, my conclusion is that Lynde Gatlin first takes by the devise in question an estate in fee simple absolute and that it is not ‘1 cut down ’ ’ by the subsequent doubtful language employed by testatrix. Such a construction, I may add, is supported when we look at the first of the events upon which it is claimed Lynde Gatlin was to be divested of the interest he first took; I refer to Ms marriage. It is claimed that the will directs, in substance, that in the event of his marriage it is to go over to somebody else. This would be a general restraint of marriage and void as against public policy. Hogan v. Curtin, 88 N. Y. 162; Robinson v. Martin, 200 id. 159; Matter of Seaman, 218 id. 77. Such a provision is valid only when it is in partial restraint of marriage or the remarriage of widows or widowers. A limitation of an estate absolutely to a person, conditioned upon his never marrying, is absolutely void, and the estate vests notwithstanding the condition, as it is an unlawful condition subsequent.. The next condition referring to the event of devisee’s death means his death before that of testatrix, in the absence of a plain direction to the contrary. Thus when we come to analyze the clauses alleged to “ cut down ’ ’ the fee, they prove not to cut it down in any true sense of the term.

In reaching the foregoing conclusions no attention has been paid to the affidavit of Miss Marie L. Been, setting forth certain declarations of the testatrix. The stipulation already referred to, under which the testimony of Mr. Sanford was given in the form of a deposition, provides also that the affidavit of Miss Marie L. Been, the companion of the testatrix, may be offered, with the same force and effect as if she were testifying. Objection, however, has been taken and reserved to her testimony on the ground of its incompetency. The affidavit of Miss Been sets forth certain declarations of the testatrix made after she executed the will. The competency of these declarations is challenged. It seems that Miss Been, the affiant, was a companion of the testatrix for twelve years prior to the latter’s death, and she claims to have been told by Miss Gatlin that, as the sister of the latter had died, a will, which she had previously made in favor of such sister, had been superseded by a new will which she had drawn herself. Miss Gatlin, indeed, is said many times to have told Miss Been that. Lynde Gatlin was her heir, and that he would get all the estate she would leave after certain charitable bequests, and that he should get between $60,000 and $70,000 from the sale of the real estate. The earlier statement said to have been made to deponent was made about six months after the will was executed. The testatrix, it is said, long after the execution of the will also told Lynde Gatlin, in the presence of Miss Been, that he would some day have the balusters of her house. Testatrix enjoined Miss Been not to let Lynde Catlin sell the mahogany doors with the house, and stated to her that she was afraid she had not left him enough, but that she had left everything to him. Thus it is apparent that the entire contents of the questioned affidavit consists of declarations of the testatrix made after the execution of her will. Such declarations are not competent to sustain the construction in support of which they are offered. The objection made to the use of the affidavit as evidence will, therefore, be sustained. There is no latent or patent ambiguity justifying the acceptance in evidence of posterior declarations of testatrix. Reynolds, v. Robinson, 82 N. Y. 103, 106; Wigm. Ev. §§ 2471, 2472; Matter of Fowles, 95 Misc. Rep. 48.

The objection filed by the general guardian to the payment of personal taxes out of the principal is the only remaining question submitted. As an abstract proposition this objection has the support of reason and authority. There is nothing in the will to indicate that the general rule which compels an executor or trustee to pay annual taxes out of income should not be observed if possible in this case. Spencer v. Spencer, 169 App. Div. 54. But in view of the accorded construction this particular conclusion, however, becomes immaterial here.

In all respects the account, as amended by the stipulation filed herein, will be approved. A decree may be settled on notice in conformity with the above opinion. If any further direction is desired by the parties, leave is given to any party to apply on notice or on the settlement of the decree.

Decreed accordingly.  