
    Jessie R. Tremenheere, Plaintiff, v. Cornelia G. Chapin et al, Defendants.
    (Supreme Court, New York Special Term,
    October, 1907.)
    Executors and administrators — Appointment and qualifications of personal representatives, etc.— Bight to administer — Nominee of testator— Executor but not trustee.
    Trusts — The trustee, appointment, etc.— Testamentary trustee — Executor where not trustee.
    Where a wife devised the bulk of her estate in trust for the • benefit of her husband and two daughters, with remainder upon his death one-half to her daughter -C. absolutely and one-half to the executrices or the survivor of them in trust for her other daughter, and the husband is appointed executor and the two daughters executrices and trustees, there are two trusts, the first of which fails upon the death of the husband; and where testatrix, by a codicil executed after his death, appoints an executor and trustee in his place “giving and granting unto him all the powers and authority given and granted unto my said husband as executor and trustee,” the appointment is limited to that of executor only as the will clearly indicates that the husband was not to act as trustee of the second trust.
    Action for construction of will.,
    Herbert Parsons, for plaintiff.
    Henry Thompson, for defendants Chapin et al.
    Carleton S. Cooke, guardian ad litem, for infant defendants.
   Bischoff, J.

Catherine M. Andrews died on the 13th day of August, 1905, leaving a substantial estate. By her will, dated May 11, 1901, she disposed of the bulk of her property by creating a trust for the benefit of her husband and two daughters, with remainder upon death of her husband, one-half to her daughter Cornelia G. Chapin, absolutely, and one-half “ to the executrices, or the survivor of them,” in trust for her other daughter, Jessie R. Tremenheere. Certain contingencies as to survivorship and succession were provided for, but these do not affect the question presented in this action.

The testatrix appointed her husband executor and trustee ” and her two daughters above referred to “ executrices and trustees,” with power in such as should survive and qualify to name a substitute for such as might die or be disqualified. The husband of the testatrix, George P. Andrews, for many years a valued member of this court, died May 24, 1902; and the testatrix was survived by the two daughters named in her will. On June 10, 1902, a few days after the death of Judge Andrews, the testatrix executed a codicil to her will containing, as the sole matter of substance, the following: “First: Whereas by my said will I appointed my late husband, George P. Andrews, one of the executors and trustees thereof; and, he having since died, I now nominate, constitute and appoint my friend John H. Judge executor and trustee in the place of my late husband, George P. Andrews, giving and. granting unto him all the powers and authority given and granted -unto my said husband as executor and trustee. Second: I hereby ratify and confirm my said will in every respect so far as the same is consistent with this codicil. ”

The question before me is whether Hr. Judge, the executor and trustee” named in this codicil, became one of the trustees of the trust for the benefit of the plaintiff created by the tenth clause of the will or whether, notwithstanding the codicil; the executrices or the survivor of them,” upon whom alone by the tenth clause the trust devolved, were to act as trustees to the exclusion of this new executor and trustee.”

With the death, of Judge Andrews and the consequent failure of the first trust, limited upon his life, there remained but one trust in contemplation when the codicil was executed — the trust for the life of the plaintiff as provided for in the tenth clause of the will — but this trust was to take effect upon his death, or upon the death of the testatrix if he should predecease her; and, in harmony with this, situation, the will limited the execution of the trust to the “ executrices, or the survivor of them,” since so far the general and later inclusion of Judge Andrews as “ executor and trustee ” could have had no application to this particular trust. Thus, we have ho uncertainty that the testatrix appreciated the fact that her husband was not to act as trustee of this trust, and the "contention that she had not expected his death during her life and appointed'Hr. Judge to act as trustee ” with the executrices ” to meet this unlooked-for circumstance disregards the fact that the testatrix had provided for this very contingency in her will and still confided the execution of the trust solely to her daughters. To say that the testatrix intended that the “ executor and trustee,” appointed in the place of. Judge Andrews and with “ the powers and authority given and granted ” to the latter “ as such executor and trustee,” should join in the execution of the trust for the plaintiff, requires the court to assume that she had forgotten not merely the formal words of her will hut the-broad situation itself in which the trust was to have its being. The death of Judge Andrews, recited in the codicil as the reason for the new appointment, while presenting a situation which touched the personnel of the .executors, was, as I have noted, no unlooked-for thing in the matter of this trust; and, in view of the actual and express limitation of the new appointee’s powers to the powers which were to have been exercised by Judge' Andrews, it is impossible to spell out an intention to appoint him cotrustee of that trust without disregarding not only the plain language used in the codicil but the very presumption of law that the testatrix, when executing the codicil, knew, at least in their general import, the contents of her will. The use of the word trustee ” in the appointment by the codicil is thus so limited by the'further description of the appointment that it cannot be taken in the strict meaning which would apply it to an express trust; and, indeed, the designation executor and trustee,” which is employed in this codicil, is found to be used in the will in relation to duties which are only. those of an executor, an informality which, in its consistent carrying out, does much to explain this question of intention. The evidence of surrounding circumstances which I have received because of the ambiguity suggested by the use of the word “ trustee,” in connection with the words of substitution and limitation, is not of a character such as would aid the defendants’ contention.

It appears that the two daughters were of full maturity and, presumably, as well able to manage the estate when the codicil was executed as they were at the date of the will, in the assumption of the testatrix. That Mr. Judge enjoyed the friendship and confidence of Judge Andrews and was known to Mrs. Andrews to be well qualified to assume such duties as might fall to a trustee of this trust are circumstances which would harmonize with an intention to prefer him for some position of confidence, whether that of executor or trustee, but afford no indication that the appointment was of one particular character. I must hold, therefore, that this codicil fails to express an intention to empower the “ executor and trustee therein named to act as trustee of the trust created by the tenth clause of the will, and that the appointment was as executor only.

Form of decision and judgment may be presented on notice of settlement.

Judgment accordingly. .  