
    In the Matter of the Last Will of Jane E. Kelemen, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed March 10, 1891.)
    
    1. Wills—Construction—Evidence.
    A codicil provided that doubts having arisen as to certain charitable bequests in the will, testatrix modified the same by making one W. residuary legatee, and requesting him to carry into eSect her wishes in respect thereto; but the provision was not to be construed into an absolute direction on the part of testatrix, but merely her desire. Held, that the bequest was absolute and therefore valid on the face of the will.
    2. Same.
    In the construction of a will, conversations as to the intention, or even written memoranda, cannot be resorted to for the purpose of sustaining a will which is apparently against the provisions of a statute, much less to destroy a will which upon its face is not in contravention of any statute.
    
      {Matter of O’Hara, 95 N. Y., 403, distinguished.)
    Appeal from judgment of the supreme court, general term, first department, affirming decree of surrogate construing a will and codicil.
    
      0. Carshadda?i, for app’lts ; Jacob F. Miller, for resp’t.
    
      
       Affirming 33 N. Y. State Rep., 937.
    
   Finch, J.

There was no issue before the surrogate to warrant the admission of the extrinsic parol evidence relating to the circumstances under which the first codicil was executed, and no jurisdiction in that officer to try the question sought to be raised by such evidence. The answer filed to the petition for probate made no question over that probate, and by its silence conceded the due execution of the will by a capable testatrix, acting freely and without restraint. The issue tendered was that allowed by § 2624 of the Code of Civil Procedure, which peimits on the probate of a will the determination by the surrogate of “ the construction, validity and effect ” of any disposition of personal property contained in it That issue was the only one on trial; and -the sole question raised of which the surrogate had jurisdiction was the construction and validity and consequent effect of the first codicil, and that involved merely the inquiry whether the bequest of the residue to Wandell was absolute or in trust, and if in trust whether it was valid under the law of this state. That question rested upon the terms of the will itself and had nothing whatever to do with an alleged extrinsic fraud againstwhich equity might relieve in a proper case; and all the evidence pointing to that relief was inadmissible and totally immaterial. The general term was evidently of that opinion, but, after expressing it, passed to some consideration of the evidence, under a seeming impression that this court in the case of O'Hara, 95 N. Y., 403, had indicated a different doctrine. The learned judge writing the opinion said: “Upon what theory evidence of this kind is admissible I cannot comprehend. It is a cardinal principle in the construction of the terms of a will that the intention of the testator must be gathered from the will itself, parol proof being only permissible to show the condition of the estate and the surroundings of the testator, and that conversations as to the intention, or even written memoranda, cannot be resorted to for the purpose of sustaining a will which is apparently against the provisions of a statute, much less to destroy a will which upon its face is not in contravention of any statute.”

So far the general term stated the prevailing rule with substantial accuracy. Its opinion then proceeds thus: “ It is true that evidence of this kind was received in the Matter of O'Hara, and that .such evidence was commented on and formed the basis of the judgment of the court of appeals in the construction of that will.” That is a mistake, and one so serious that we ought not to allow it to perpetuate itself, even at the expense of explaining what seems to us to need no explanation. In the O'Hara case there was never any question of construction at all. Hone was raised and none considered; and so the parol evidence received was not ádmitted or acted upon “in the construction of that will.” It came in for a different purpose and upon widely different issues. There were two separate appeals, but heard and argued together. Upon the petition for probate of the will the contestants filed an answer denying its execution and alleging that it was obtained by undue influence. It contained an absolute bequest to three persons, not of kin to the testatrix, but standing in confidential relations to her. The fact furnished ground for an inference of some improper influence exercised over the testatrix, and to rebut that inference on the one hand, and fortify it on the other, all the extrinsic facts tending to prove or disprove the undue influence were admissible in evidence and properly received as bearing on that issue. In the case at bar there was no such issue, and so no such ground or reason for the extrinsic proof offered, and to admit it on an issue of undue influence is very far from holding it competent on a question of construction. The evidence thus offered in the O'Hara case disclosed a secret and illegal trust, to effectuate which the absolute devise and bequest had been made. The contestants thereupon filed a complaint in equity alleging all the facts, claiming that the devise and bequest in the hands of the legatees was the product of a fraud upon the testatrix or upon the law, and seeking relief against that fraud. Of course all the extrinsic facts became again admissible to establish the fraud alleged, and this court relieved against it by impressing a trust ex maleficio upon the property in the hands of the devisees and legatees for the benefit of the heir sand next of kin. In so doing we did consider the parol and extrinsic evidence, but in an action in equity and upon an issue of fraud. And that again is something very far away from holding such evidence admissible in a surrogate’s court upon a mere question of testamentary construction. ¡Nothing of that sort was involved in the case or decided by it.

In the case at bar, therefore, the extrinsic evidence was not admissible upon the issue of construction, nor to establish a trust ex maleficio, which was wholly outside of and beyond the jurisdiction of the surrogate. And so we must come back to the real question involved; whether the will, by its terms, established any trust, and, if só, whether that trust was valid.

We think- it very clear thát the bequest was absolute to the legatee and not upon any trust at all. The language of the codicil is as follows: “ Doubts having arisen as to the validity of the bequests made for charitable purposes in my said will, I hereby modifye said will dated February 18, 1889, by making my • friend, Townsend Wandell, my residuary devisee and legatee, and hereby request him to carry into effect my wishes with respect thereto, but this is not to be construed into an absolute direction on my part, but merely my desire.”

The will had made certain charitable bequests, but sure to fail if, as was probable and as happened, the decedent should not survive for two months after they were made, and that was the basis of the “ doubts ” expressed in the codicil.

It is very evident that the decedent did not intend to die intestate as to any part of her estate. By her will she devised and bequeathed any residue of her estate to one of the selected charities, and the purpose of the codicil was to carry that residue certainly and absolutely to Wandell, leaving him in that event to deal with the charities as he pleased.

It is true that the expression of a wish or a desire may sometimes serve to found a trust or effect a charge, but such expressions are by no means conclusive. We must still examine the will to discover the testamentary intention. Phillips v. Phillips, 112 N. Y., 205; 20 N. Y. State Rep., 301.

In the present case the testatrix expressly guards us against a mistaken interpretation. She says that the expression of her wish is not to be construed as an absolute direction; by which she evidently means that while she desires that her residuary legatee shall deal with the charities as she would have been glad to, yet she does not mean to fetter his ownership or qualify his right. She leaves him absolute owner and free to do as he shall choose. She puts upon him no obligation, legal or equitable, but contents herself with the bare expression of a wish which she hopes will influence his free agency. And so the bequest was absolute and therefore valid on the face of the will.

That conclusion disposes of the whole issue raised before the surrogate. It determines the construction of the bequest, declares its validity and consequent legal effect. If there are any extrinsic grounds for impressing a trust ex maleficio in favor of heirs or next of kin upon the bequest thus carried to the residuary legatee, it is sufficient to add that an action for such purpose must be brought in equity, where the power resides for granting that relief.

The judgment should be affirmed, with costs.

All concur.  