
    In the Matter of the Estate of Henrietta H. Johnson, Deceased.
    Surrogate’s Court, Kings County,
    June 22, 1933.
    
      F. P. Trautmann, for the executors.
    
      Merchant, Olema & Flagg, for the general guardian.
   Wingate, S.

The testimony respecting declarations of the testatrix and her husband at the time of the execution of the will regarding their testamentary intent was clearly incompetent and has been disregarded by the court in attaining its result. In consequence, the interpretation of the will must be based almost wholly upon the instrument itself.

Its directions are simple. The entire estate was erected into a trust for testatrix’s husband for life, with directions that upon his death a trust fund of $50,000 should be erected for her grandchild. This item concluded with the following words: “ Upon my Executors setting apart the sum of Fifty-thousand ($50,000) Dollars, as hereinbefore directed, they may do so by transferring any part or portion of the stocks and securities at par value thereof which they may then have and hold in trust for the benefit of my husband as provided in the preceding paragraph marked ‘ Second.’ ” In this paragraph the words at par value thereof ” were interlined in the will and such alteration of the instrument, as originally written, was noted by the subscribing witnesses as having been made prior to the execution.

The remainder of the estate was given to testatrix’s daughter, who, with her husband, was appointed executrix with extremely broad powers, including the right to purchase and hold legally unauthorized securities.

Testatrix’s husband predeceased her, and the executrix and executor have allocated to the trust for the grandaughter securities received from the decedent which possess a par value of $50,000 but have a present market value of approximately $23,000 less. The instant controversy centers upon this act, it being the contention of the granddaughter, through her guardian, that she is entitled to either $50,000 in cash or the equivalent in securities possessing such a market value.

The objecting party urges that the authorization to employ securities at their par value in setting up the trust is limited to those which formed a part of the corpus of the primary trust for the husband; that no such trust was ever erected by reason of his predecease, and that consequently it was beyond the power of the executors to allocate securities indiscriminately from the entire estate. This contention loses sight of the fact that the entire estate was dedicated to the primary trust, by reason of which fact, coupled with the authorization to continue in the trust all securities coming from the decedent, the two sources were identical.

This position being legally untenable, there remains, on the question of interpretation, merely the unequivocal direction of the testatrix that securities for the purpose of computing the gift should be taken ''as being worth the value which she specified. Obviously this direction, like any other not contrary to express legal inhibition, was within her absolute power. She could, if she chose, have directed that the gift in question be solved by the giving of an old article of clothing and, if her intent in this regard was clear, no one could be heard to protest against the extent or manner of making the gift.

That testatrix possessed substantially unlimited confidence in her chosen fiduciaries is entirely patent from the general tenor of the will. The discretion, within well-defined limits, given them regarding the erection of the trust in present controversy, is but another instance of this attitude of mind, and absent any demonstration of fraud or gross unfairness on the part of the donees of this power, the court cannot interfere with their acts in its execution. (Matter of Gavey, 147 Misc. 332, 336.)

Evidence of any fraud or unfairness in the allocation made is wholly lacking; in fact the tabulation of the guardian affirmatively demonstrates their absence. The objection must, accordingly, be overruled.

Proceed accordingly.  