
    James Austin, App’lt, v. Jane Oakes, Individually and as Executrix, etc., Resp't.
    
    
      (Court of Appeals,
    
    
      Filed January 14, 1890.)
    
    
      1. Will—Construction of—Power of appointment—Death without ISSUE.
    Testator left his widow and four sons, one daughter and the two children of a deceased son, John W. He gave the use of his property to his wife for life, with remainder to the children, in such proportion as she “may by her last will and testament direct and appoint,” and in default of her direction and appointment apportioned it in six equal shares to his children and their issue. He also made a codicil by which he directed that on the death of his wife the share of the son James and grandson Charles should be held in trust, the principal to go to their issue at their death. The widow made a will apportioning the estate in unequal proportions but conforming to the directions of the codicil as to James and Charles, directing that if Charles should die without issue, his share should go to four sons living and a grandchild in equal shares, but on the death of Charles she also made a codicil giving his share to William and Frederick Oakes, the children of her daughter, devisees not permitted under the former will. Held, that the testatrix did not mean by the death of Charles “without issue” only such death as should occur after her own, and that by her will she fully, completely and lawfully executed the appointment authorized by her husband; that such appointment was not revoked by that of the codicil, which was null and void.
    8. Same.
    Although the gift in the codicil of the share of Charles to the Oakes children was null and void, that did not disturb the remainder of the will, which made a lawful and valid appointment of the power, and the property should pass accordingly.
    Appeal from judgment of supreme court, general term, first department, reversing judgment in favor of plaintiff entered on verdict of jury.
    
      Walter S. Logan and George Bliss, for app’lt; Henry L. Sprague, Noah Davis and Theodore W. Dwight, for resp’t
    
      
       Modifying and affirming 15 N. Y. State Rep., 949.
    
   Finch, J.

The primary question raised in this case is whether the will of the testator gave to his wife a single power of appointment only, or in addition thereto a second and broader power although limited in its operation to the shares intended for the son James and the grandson Charles, and to the contingency of the death of either without issue during the lifetime of the widow. Stated in a more convenient form the inquiry is whether the power of appointment recited in the testator’s codicil is a new and distinct and separate power adequate to sustain the appointment made, or not so adequate and merely a reference to the one already given in the will itself. "Upon this question the trial court and the general term have differed, with so much of sensible and pertinent reasoning as to make a final determination not altogether easy.

The testator left his widow and four sons and one daughter and the two children of a deceased son, John W., who were the objects of his bounty, and for whose benefit he made careful provision. To his wife he gave the use of all his property for her life, with remainder to her children and the issue of John, but “in such shares and proportions as she,” the widow, “ may by her last will and testament direct and appointand then further provided “ that in default of such direction and appointment the said estate shall go to her said five children now living and the issue of said deceased son in six equal shares; the issue of said deceased son to take one of said shares ; and should either of said intended beneficiaries die before that one’s intended share vests, then the issue of the one so dying shall take the portion intended for such deceased.” One thing in this provision seems at first very obvious. The whole disposition of the remainder into six equal shares, with a substituted remainder to the issue of any one dying before his or her share should vest, appears to be a disposition which, literally interpreted, relates only to the emergency of a failure by the wife to appoint at all. But closer examination makes that construction inadmissible, and all parties appear to agree that it is the testator’s apportionment only which operates in default of an appointment, and that the other provisions of his will relate to, and restrict or enlarge the operation of the power conferred upon his wife.

That power was oné of apportionment. The testator decreed ‘that his property should go, after the life estate of his wife had ended, to his six named dt visees and their issue, and authorized her to dictate by her will the shares and proportions in which they should take. It is undoubtedly true that the power was selective, and the wife at liberty to appoint to one or more, excluding others, for the statute which abolished all previously existing powers and substituted a new system by which we must be guided, provides (§ 99) that “when the terms of the power import that the estate or fund is to be distributed between the persons so designated in such manner or proportions as the trustee of the power may think proper, the trustee may allot the whole to any one or more of such persons in exclusion of the other.” The testator, therefore, presumably knew that his wife’s apportionment might be unequal, and even that some could be excluded, although he evidently did not anticipate such exclusion by her; but, in any event, whatever her apportionment might prove to ber he himself limited those shares to the named devisees, or some or one of them, depending upon his wife’s action or omission to act, with remainder over in case of the death of any one in the widow’s lifetime to the issue of the one so dying. He thus intended a share for each, if his wife made no appointment; and a share for each, or for one or more of them, if she did; but she had no power except to apportion the estate among the children, having no right to give .anything to others, and authorized to give it to them only by the process of dictating their respective proportions. He gave her no power by the terms of his will, as distinguished from his codicil, to appoint to the issue of any in the emergency of the death of one or more during the widow’s lifetime leaving issue. He reserved that power to himself and exercised it. He provided for that possible event, and so the entire substance of his will covered four dispositions and four only.

They were: First, a life estate to his wife; second, remainder to his six children, counting the two children of John as one; third,, an equal division of that remainder among the six unless his wife should by will make the division in other proportions, which he authorized her to do; and fourth, if one should die before the widow leaving issue, his share to such issue. Now the event contemplated by the fourth disposition never occurred and can never occur, for of all the six the grandson Charles alone died before Mrs. Austin, and he left no issue. We are therefore spared any inquiry into the meaning and scope of the fourth disposition, because the event never occurred and never can happen which would have made it operative.

But while the will failed to cover possible contingencies in respects which led to the codicil, it did reach the contingency of the death of Charles without issue prior to the decease of the widow, through the appointment which she was authorized to make. Under the authority conferred upon her she was empowered, after the death of Charles, childless, to divide the whole estate among the survivors of the named and permitted devisees. She could have omitted him and made precisely that disposition if he had lived; when he died childless she could not avoid such omission, and was limited to the survivors as objects of her apportionment. '

But the testator made a codicil. By the terms of that he restricted the operation of his wife s power of appointment in one direction and enlarged its operation in another, without in any respect changing its terms. That codicil reads thus: “ I direct on the death of my said wife the share of my estate to go to our son James and our grandson Charles, now known as James and Charles Austin, shall be held by my surviving executors in trust for them during their lives and the interest thereof applied to their use, and at their respective deaths the principal shall go to their issue, if any, if none then the same shall fall into my general estate, or as my said wife shall by will direct.” This last expression is claimed by the respondents to be a new, distinct and secondary power which Mrs. Austin was at liberty to exercise, and which was without restriction so far as it applied.

But whatever it was in its scope and range, it was confined to the contingency of the death of James or Charles after the death of the widow, and has no application to the death of either before Mrs. Austin, which was the actual event. For, the codicil presupposes the survival of James and Charles ; it speaks of a situation at the death of the widow; it creates a trust for them, beginning at that death and at no moment earlier; it limits them to the income of such trust fund, and disposes of the principal at their deaths. To meet the conditions of the codicil and make its dispositions operative it was requisite that at Mrs. Austin’s death there should be a share to go to. James and Charles which was capable of being held in trust for them, and it was that share, so vested in each, that trustees were to hold, and that was to go to issue, or if none, to fall into the general estate or as the widow shall by will direct. We need not linger over the meaning of this alternative disposition. It is enough for all the purposes of the case that the secondary power given by the codicil to Mrs. Austin never became operative as it respected any share of Charles because he died before Mrs. Austin, without issue, and the only provision adequate to and provided for that emergency by the will and codicil of the testator slept in the authority conferred upon the widow to appoint the whole estate to those of the permitted devisees who were living at her own decease. No other provision was needed. The general intention of the testator to keep his property in the ownership of his children was perfectly accomplished, because, upon the death of Charles without issue in the lifetime of his grandmother, she was armed with power to dispose of what would have been his share if he had lived among the surviving objects of the power. The secondary power, appendant and appurtenant to an estate of Charles vesting-in possession after the death of Mrs. Austin, must be dismissed from the 'controversy as having no bearing upon the contingency which actually arose.

The will and codicil of the testator leave us, therefore, with only the primary power of appointment applicable to the situation produced by the death of Charles without issue in the lifetime of the widow. And that opens the final and ultimate question, whether Mrs. Austin by her will did effectually exercise the primary authority conferred, or whether she so failed as to make her action invalid and leave the property to pass under the provisions of the testator’s will which operated in that emergency. That question has been argued elaborately and with an industrious citation of authorities, and adds a new and grave interest to the duty which remains.

Mrs. Austin executed first a will and later a codicil which together were admitted to probate and constitute her last will and testament. By the earlier instrument she formally executed what she intended should become at her death the “ direction and appointment” authorized by her husband’s will. She recites the authority conferred accurately and in detail, declares her intention and then appoints the whole estate to the six permitted devisees, but in unequal proportions, giving one-half of the whole to her daughter, Jane Oakes, and one-sixteenth to the grandson, Charles, leaving smaller proportions to the others; and then, mindful of the emergency to which her husband’s codicil called her attention, she appointed that if James should die without issue his share should go to the three sons living and the two grandchildren, the latter taking one of the four parts; and if Charles should die without issue, his share should go to the four sons living and to-the granddaughter Winifred, in five equal shares; and then created as part of her disposition the same trust as described in her husband’s codicil. At this point of time and at this stage of the widow’s action the authorized appointment was completely and perfectly executed, and in all respects within the limits of the power. If Mrs. Austin had died during the life of Charles, leaving no testamentary paper except the will itself, no question could have arisen. She executed the power by will; she distributed the whole remainder; she divided it among the prescribed beneficiaries ; and in deference to her husband’s wish re-created a trust similar in all respects to his. But her will was revocable and ambulatory until her death. It effected nothing and accomplished nothing until that event, and when death came a codicil had been executed which changed the situation. Charles had died before that codicil was made, but the will had provided as we have seen for the emergency which happened of his leaving no issue. Nevertheless, Mrs. Austin executed a codicil endeavoring to give the share a new direction. She appointed it to go to William and Frederick Oakes, and so transgressed her authority. One of several consequences resulted. We must treat the codicil as an integral part of the will, and the appointment as made at her death, and by the will and codicil read together as constituting one instrument, and so it will follow either that the whole appointment was void and the equal division of the testator operated, which is the appellant’s contention; or that the unauthorized appointment was simply a nullity and left the valid appointment of the will .undisturbed; or that the appointment of the codicil if invalid was only so as to that share and left the remaining appointments good; which last two propositions are asserted by the respondents.

Confining our attention, as we must, to the will and codicil of Mrs. Austin as an execution, or attempted execution, of the primary power, and conceding, also, as in our view of the case has become inevitable, that her appointment to the Oakes children is invalid because it transcends the authority of the primary power, we may first inquire whether the will of Mrs. Austin, as distinct from the codicil, did, in truth, make a complete appointment of the whole estate to the permitted devisees, as we have already asserted ; and, if so, whether that valid appointment is mutilated or destroyed by the invalid effect of the codicil. The appellants claim that Mrs. Austin’s will failed to appoint the one-sixteenth of the estate which would have gone to Charles if he had lived, or to his issue if it had existed, for the reason that the devise over to his uncles and sister took effect only upon his death without issue after the death of the widow, and since he died in her lifetime the will made no provision for the emergency. I do not so understand its terms. It is conceded on all sides that the appointment is to be construed precisely as if it had been a devise or bequest by the testatrix of her own property. In such case the general rule is that the death which gives effect to the devise over is a death in the testator’s lifetime, unless the language used indicates a different meaning. The subject was discussed in Vanderzee v. Slingerland, 103 N. Y., 47, 54; 2 N. Y. State Rep., 732, where it was said by Andrews, J., that a devise to A. and, in case of his death without issue, then to B., refers to a death in the lifetime of the testator, although the English rule, at least as to personalty, appears to be that the reference is to a death either before or after that of the testator. When, therefore, Mrs. Austin appointed the share of Charles to him, and, “ should he die without issue,” then over to her living sons and granddaughter, the reference is to a death in her lifetime, or at least to one occurring either before or after her own decease, unless something else in the will limits the expression to a death succeeding hers. It is argued that there are such expressions. One of them is found in the fact that in making the devise over she refers to the codicil of her husband as distinguished from his will as the source of her authority.

In our view of the case, that was simply a misrecital of the source of her authority, which was really derived from the will itself, and as we shall see affords no rational clue to the meaning of the testatrix. But attention is called to her description of the share devised. The words are “ the principal sum so held in trust for the one so dying shall go,” etc., and it is argued that, as no principal sum could be held in trust until by the death of Mrs. Austin the trust which she created anew was to come into existence, the death referred to must have been one occurring after the share had gone into the trust, and so after the death of Mrs. Austin. The suggestion would be very forcible if the trust described in her words referred, and could only refer, to the trust which she created for his share and which the testator had dictated. But I think it does not When these words were used no such trust had as yet been created by her. That created by the testator was to operate in the future, but had not as yet been formulated by her when the words quoted were used. To what “ principal sum held in trust ” did she then refer ? The answer is easy. If we go back to the will of her husband we shall see that he uses this language: “ I give, bequeath and devise . to Mrs. Winifred Austin * * * all my estate, real and personal, upon trust, to hold the same during her life, and apply the rents and income thereof to her own use, and at her death the said trust estate is to be divided,” etc. It is plain that he regarded the principal of his estate as held in trust by the life tenant for the ultimate use of his children. In her will, Mrs. Austin recites literally her husband’s language; in making her appointment of the whole estate she describes it as “ bequeathed and devised to me in trust by my said husband and so, when she comes to the shares of Charles and James, she describes them as “the principal sums so held in trust for the one dyingevidently meaning the shares which she had designated and was herself holding in trust for the beneficiaries during her own life. It is inexcusable to divert her language from the trust to which she did refer, whether it was strictly such or not, and apply it to one which at the moment she had not even created or formulated in words. I discover, therefore, nothing in the will which can drive us to the narrow construction that by the death of Charles without issue the testatrix meant only such a death occurring after her own.

I have not overlooked the argument founded upon the use of the word “so” in the expression “principal sum so held in trust.” It occurs after the recital in Mrs. Austin’s will of her husband’s codicil as containing the power under which she was about to act, and it is said, as that codicil framed a trust to commence after the widow’s death, the word “ so ” indicates that trust as referred to. But that explanation does not explain. “ So held in trust ” implies reference to a fund then, at the moment, “held in trust,” possessed by somebody as trustee for some one else as beneficiary, and “ so held in trust ” as had been before stated and described. That sketches accurately the “principal” of the estate already mentioned as held in trust by the life tenant for the benefit of the devisees, and actually possessed by her in her confessed character of trustee; but does not describe a mere future and paper trust, under which nothing is held, and which never could come into existence at all if Charles should die childless in her lifetime. And thus the conviction is strengthened that Mrs. Austin did fully and completely and lawfully execute by her will the appointment authorized by her husband, unless the further objection of the appellants is sound, that her codicil appointing the share of Charles to the Oakes children operated as a revocation of the devise over, although itself null and void.

That proposition strikes me as both unreasonable and illogical. The appellants are required to argue, as they do argue, that the appointment of Mrs. Austin’s codicil was absolutely .null and void because it transcended the authority conferred; and not only that but was so vicious and bad that it dragged down with it the other appointments which did not exceed the power, and yet was.good enough and had force enough to revoke and annul without words of revocation an appointment complete and lawful and fully within the scope of the power conferred. There is said to be authority .for that doctrine, but if there is, we should hope for the needed courage to dissent from its determination, for it will not bear the scrutiny of common sense, or harmonize with the plainest dictates of justice. I think a very brief analysis Will show that I do not speak too strongly.

What then is the ground of the alleged revocation ? There are no words to that purport or which declare that intention, and so-it rests alone upon an implication born of the alleged repugnancy of the two provisions. But are they necessarily repugnant? They would be if the devise to the Oakes children was good; but are they if it is bad ? Can nothing be repugnant to something and turn that something into nothing? Suppose Mrs. Austin had written out in full the thought which was in her mind when she executed the codicil-: she would have said, I prefer to give the share of Charles to the Oakes children if I can; that is my preference, and I give it to them if I may do so according to law; and then, suppose that it should turn out that she could not lawfully make the change; does it follow in that event that she meant to revoke the valid appointment ? It seems to me that the implied revocation is wholly conditional, and the condition has failed. The provision was rather a preference than a revocation. Certainly we must infer that she preferred to give the share to the Oakes children instead of her own, if she could, but as certainly we have no right to infer that, if she could not, she still meant to deprive her own children of what she had given them in the proportions assigned. There is no warrant for that. There is no word in the-will and no fact in the case to charge her with an intention to withdraw her devise over to her children in the emergency that she could not gratify her preference for the children of her daughter. A revocation of an earlier disposition of a will by a later one, or by a codicil, on the ground of repugnancy, is never anything but a rule of necessity, and operates only so far as is requisite to give the later provision effect. We have said that in distinct and unqualified terms. Pierpont v. Patrick, 53 N. Y., 595. But no revocation could give effect to this codicil. We have said again that where provisions are repugnant it is our duty to preserve the paramount intention of the testator at the expense even of some subordinate particulars. Taggart v. Murray, 53 N. Y., 233. There is no possibility of mistaking what that paramount purpose of Mrs. Austin was. Most of all, she desired to execute the power of appointment with which she was entrusted, and distribute the estate in accordance with that authority. She did so by her will, but in the end preferred • to give a reversion to the Oakes children if she lawfully might. That preference was wholly subordinate to the execution of her power, and no violence is done to her intention if, that failing, the disposition of her will is suffered to stand, for I deem it beyond a reasonable doubt that if she had known what we now know, that an appointment to the-daughter’s children was not within her authority, she never would have made it, but would have suffered the disposition of her will to remain.

In Churchill v. Churchill, L. R., 5 Eq., 44, the testator, exercising a special power, appointed a fund property to his three daughters, who were objects of the power, and then by a later provision limited the share of each daughter to a life estate with remainder over to her children who were not objects of the power. Lord Eomilly held that “as the subsequent condition and restriction are simply void, the original gift remains unaltered and unaffected by that which has, in truth, no efficacy whatever. In Duguid v. Fraser, L. R., 31 Chan. Div., 449, the testator gave to his sister a fund for life, with power to divide it by will between her husband and children as she might determine. She made a will effecting such a division. After its execution one of the sons died, and by a codicil she bequeathed his share in trust for his children who were not objects of the power. The court held the last appointment void, but held also that since there were no words of revocation the bad appointment could not serve to revoke the good one. The appellants’ counsel criticize this case severely. They say that it is opposed to the American doctrine, and cite three authorities for their assertion. 1 Eedfield on Wills, 288; Westcott v. Cady, 5 Johns. Ch., 344; Lynch v. Pendergast, 67 Barb., 501. No one of these sustains it in any respect •or degree. The first holds the familiar doctrine that will and codicil must be read together. Nobody as yet has disputed that. The two cases cited were instances in which the later and repugnant provisions were valid, and to give them the effect to which they were therefore entitled it was necessary to treat as revoked certain prior provisions; and nobody doubts that. The counsel further say that the decision was only that of a single judge and was never reviewed by an appellate court. That might weaken its authority if any well considered case has been decided to the contrary, but even then its justice and good sense would remain. It is again insisted that in the case cited the gift in the codicil could only take effect by way of revocation pro tanto of the gift in the will which had an effect over all the funds unless the codicil had altered it, while here there was a new provision and the will did not affect the whole fund. We have already held that the codicil can only take effect, if at all, by way of revocation and that the will does dispose of the whole fund.

One added suggestion is necessary on that subject. It is quite true that Charles had no share under Mrs. Austin’s will until that will took effect and that prior to that event the provision for him rested in intention merely which was revocable at any moment before her death, but reading the will together in all ffs parts it is impossible not to see that the final clause relative to the death of Charles was intended in case of such death without issue to carry the share limited to him by the terms of the will to his uncles and sister and so dispose of the whole estate. Haying alloted to him a share she regarded herself as holding that in "trust for him, instead of the larger share which she did hold for him under her husband’s will.

Upon the argument some other authorities were cited. Beard v. Beard, 3 Atk., 72, decided in 1744, held that a will “made in a passion ” at a tavern giving the whole estate to a brother was revoked by a later deed poll of the whole estate to the wife, although the deed was inoperative and could not take effect. Ho such revocation of a will could occur in this state, and our statute was intended to render such revocations impossible and condemns the principle upon which they were founded, and at least there was power in the grantor to convey although none in the grantee to take. Other cases cited on the argument have been examined but without changing our conclusion. And so I think we should declare that the appointment to the Oakes‘children in Mrs. Austin’s codicil was null and void but that her appointment in her will was a lawful and valid appointment of the whole estate to living persons who were objects of the power and that the property should 2)ass accordingly.

The judgment of the general term should be modified to correspond with that conclusion and as modified be affirmed, with costs to all parties out of the estate.

All concur.  