
    In the Matter of the Construction of the Will of Jacob Flyer, Deceased. Phyllis Kavett, as Trustee, et al., Appellants; Jeannette G. Leavitt, as Committee of the Incompetent, Elsie Flyer, et al., Respondents.
    Argued December 9, 1968;
    decided January 23, 1969.
    
      
      Herbert Monte Levy for appellants.
    I. Considering the four corners of the will, which gave trustee an uncontrolled discretion to invade principal based upon the widow’s needs (while giving uncontrolled discretion as to invasion for the contingent remaindermen on the basis of their best interests), the trustee did not abuse her discretion by refusing to invade principal. (Rezzemini v. Brooks, 236 N. Y. 184; Matter of Clark, 280 N. Y. 155; Matter of Martin, 269 N. Y. 305; Matter of Bisconti, 306 N. Y. 442; Matter of Garrett, 9 A D 2d 545, 8 N Y 2d 725; Holden v. Strong, 116 N. Y. 471; Matter of Van Gaalen, 38 Misc 2d 853; Matter of Levis on, 29 Misc 2d 697.) II. In any event, the sole, absolute and uncontrolled discretion given to the trustee as to invasion prevents the court from interfering with that discretion by mandatory invasion irrespective of beneficiary’s private resources. (Matter of Garrett, 9 A D 2d 545, 8 N Y 2d 725.) III. Reading the will as an entirety, and considering all the facts and circumstances under which the provisions of the will were framed and continued, testator clearly intended to permit his trustee to consider his widow’s other resources in determining whether to invade principal, rather than requiring a mandatory invasion irrespective of the widow’s resources, which cannot benefit the widow, would disinherit his own flesh and blood, and would create an estate for an heir who had rejected both testator and his widow. (Matter of Fabbri, 2 N Y 2d 236; Spencer v. 
      Childs, 1 N Y 2d 103; Matter of Gulbenkian, 9 N Y 2d 363; Matter of Larkin, 9 N Y 2d 88; Matter of Carlin, 6 A D 2d 281, 6 N Y 2d 914; Matter of McCoy, 1 Misc 2d 723; Vincent v. Rix, 248 N. Y. 76; Matter of Pennock, 285 N. Y. 475; Matter of Pettit, 241 App. Div. 209; Matter of Villalonga, 6 N Y 2d 477.)
    
      Richard E. Leavitt for Jeanette G. Leavitt, respondent.
    I. By its plain language and all established judicial constructions, the life trust for the incompetent beneficiary constitutes an absolute gift of support and maintenance which is a charge upon the income from the trust and upon the principal without regard to any other income received by the beneficiary. (Matter of Welles, 11 A D 2d 780, 9 N Y 2d 277; Matter of Villalonga, 6 N Y 2d 477; Matter of Gautier, 3 N Y 2d 502; Matter of Englis, 2 N Y 2d 395; Matter of Barnes, 2 N Y 2d 787; Matter of Ryan, 258 App. Div. 885, 283 N. Y. 699; Matter of Bisconti, 306 N. Y. 442; Rezzemini v. Brooks, 236 N. Y. 184; Matter of Clark, 280 N. Y. 155; Matter of Johnson, 46 Misc 2d 52.) II. The explicit language used in the instant will, which has heretofore been uniformly construed by the courts, clearly evinces testator’s intent to make an absolute gift of the interest and principal of the trust estate to his widow for her care, maintenance and support. (Matter of Krooss, 302 N. Y. 424; Matter of Martin, 269 N. Y. 305; Holden v. Strong, 116 N. Y. 471; Matter of Garrett, 9 A D 2d 545, 8 N Y 2d 725; Matter of Messer, 34 Misc 2d 416; Matter of Levison, 29 Misc 2d 697.) III. The trustee has abused her discretion by failing to provide sufficient moneys from principal for the incompetent widow’s support and maintenance. (Matter of Johnson, 46 Misc 2d 52; Matter of VanZandt, 231 App. Div. 381; Matter of Rueff, 3 Misc 2d 211; Matter of Surbeck, 185 Misc. 635.) IV. Considering testator’s grave concern for his wife at the time of the execution of his will, and all the facts and circumstances of his wife’s illnesses at the time the will was executed, and subsequent thereto, testator clearly intended to make an absolute gift of all income and principal of this trust to the extent that, if the income was ‘ ‘ insufficient ’ ’, the trustee should “use from principal sufficient moneys” to provide for his ill wife’s support and maintenance, rather than require a construction which allows the trustee and her sisters, who are already the recipients of two thirds of testator’s estate, to amass additional largesse by failing to care for his widow. (Matter of Gulbenkian, 9 N Y 2d 363; Matter of Larkin, 9 N Y 2d 88; Matter of Falvey, 15 A D 2d 415, 12 N Y 2d 759.)
   Chief Judge Fuld.

In this proceeding to construe a will, we are presented with the question whether a trustee, vested with sole and absolute discretion to invade the principal of the trust for the support of the life beneficiary, may take the latter’s private resources into account before deciding to effect an invasion.

The testator, Jacob Flyer, died in August of 1964. He was survived by three daughters of a deceased first wife and by a second spouse, Elsie, whom he had married in 1945. In 1960, the latter suffered a severe stroke which left her a hopeless and incurable invalid. Soon thereafter, the testator executed his will giving two thirds of his estate outright — or his entire estate if his wife predeceased him — to his three children in equal shares. Out of the last third, “ or the sum of $20,000, whichever is greater,” he created a trust for his widow, with the remainder to be equally divided at her death among the three daughters. The estate was valued at over $50,000.

The particular clause which prompted the present construction proceeding, after reciting that one third of the testator’s estate was to be given in trust to one of his daughters as trustee ‘ ‘ to pay to [his] wife Elsie or her representative, or to use for [her] benefit * * * the income thereof for [her] life ”, went on to provide that,

“ if such income be insufficient for the support and maintenance of Elsie, my Trustee shall so pay or use from principal sufficient moneys to provide for Elsie’s support and maintenance, in the sole, absolute and uncontrolled discretion of the Trustee. If, in the sole, absolute and uncontrolled discretion of the Trustee, any part of the net income thereof need not be used for the support and maintenance of my said wife, such part of the income shall be added to and become part of the principal of the trust estate.”

The testator’s wife spent virtually the entire four-year period, between the execution of the will by her husband and his death, in hospitals and nursing homes and was finally confined to Pilgrim State Hospital after she had attempted suicide. She has a sister — who was appointed her committee in 1965 — and a daughter by a previous marriage. Her assets, in addition to the trust set up for her benefit, consist of cash and personal property, worth about $10,000, and income from social security payments amounting to about $1,800 a year.

There is due and unpaid a hospital bill of more than $10,000. The petitioner in this construction proceeding — the incompetent’s sister who, as noted, is her committee — contends that the testator ‘ ‘ intended ’ ’ an absolute gift of both income and principal to his widow, without regard to her independent resources, and that, accordingly, the trustee should be required to pay that bill as well as any others which may be incurred. The trustee, one of the testator’s daughters, finds no such requirement in the will. It is her position that her father, though desiring to provide for his widow’s maintenance out of principal in case of necessity, intended her private income to be used and, in support of this claim, calls attention to the fact that the testator had actually used his wife’s social security moneys in paying her hospital bills during his lifetime.

The Surrogate agreed with the petitioner, concluding that the trustee was required to pay all amounts necessary for the widow’s support and maintenance out of both principal and income “ without regard to [her] private resources ”. A closely divided Appellate Division affirmed. The minority took the view that it was clear from the will, as well as from the circumstances existing between the time of its execution and the testator’s death, that he intended his widow’s independent income to be applied toward her support. If the result be otherwise, Justice McGtiverx pointed out in his dissenting opinion,

“ The corpus will be eroded—for as it decreases, its yield will correspondingly diminish, to the point of destruction, if the widow lives long enough. And an injury is wrought to the children of the testator. All the while, the social security payments of the widow here will batten and pointlessly accumulate. Social security was devised to allay the fears and mitigate the privations of old age, not to multiply for some one else, other than the subject, to enjoy.” (29 A D 2d 8,11.)

We agree with the dissenting justices of the Appellate Division that the present case falls within the decisions holding that a trustee is privileged to consider the beneficiary’s independent income before effecting an invasion of principal.

Although the decisions in this area of the law place emphasis on the precise verbiage found in the provision creating the trust, close analysis reveals that they take into consideration more than such verbiage alone in seeking to ascertain the testator’s intent. The language may not, of course, be entirely disregarded but, as in every case in which a will is ambiguous or silent with respect to a controverted matter, it is the testator’s intent which must control, and we educe his design not only from the language employed but from a “ sympathetic reading of the will as an entirety and in view of the facts and circumstances under which [its] provisions * * * were framed.” (Matter of Fabbri, 2 N Y 2d 236, 240; see, also, Matter of Clark, 280 N.Y. 155,160.)

The principle which emerges from the cases may be briefly stated. A trustee, particularly when given uncontrolled discretion to invade principal (see, e.g., Matter of Bisconti, 306 N. Y. 442, 446; Matter of Messer, 34 Misc 2d 416, 420), may, before deciding to effect an invasion, take into account the beneficiary’s independent resources where there is no “ absolute ” gift of principal, the prime gift being that of income, and the testator intended that the “invasion of the principal * * * [be] dependent upon the needs or requirements of the beneficiary.” (Matter of Martin, 269 N. Y. 305, 312; see, also, Matter of Garrett, 9 A D 2d 545, affd. 8 N Y 2d 725; Matter of Hogeboom, 219 App. Div. 131; Matter of Messer, 34 Misc 2d 416, supra.) The rule is, however, different — that is, the trustee may not consider the beneficiary’s income — where the testator attached no condition of need and intended that “ The gift of principal [be] as broad as the gift of interest ” and the first inseparable from the other. (Matter of Martin, 269 N. Y. 305, 310, supra; see, also, Matter of Clark, 280 N. Y. 155, supra; Rezzemini v. Brooks, 236 N. Y. 184; Holden v. Strong, 116 N. Y. 471.)

In the case before us, as already noted, the trustee was given an absolute discretion to invade principal if the income were “ insufficient ” for the wife’s support. Silent though the will itself is as to whether her own income was to be considered, study of the testament as a whole, in the light of the attendant circumstances, makes it plain beyond doubt that, although the testator wished to provide for his wife during her lifetime, his paramount concern was for his daughters and their children and his desire was to preserve* his estate for them.

Turning, first, to the testator’s will, it is instinct with his affection and concern for his descendants. He left his total estate to his three daughters in equal shares if his wife predeceased him. Any income from the trust which she did not need for her support was to be added to the principal which they were to inherit. In the event of a daughter’s predeceasing his wife, he made elaborate provision for gifts over to Ms grandcMldren. Inclusion of the latter provision goes far toward establishing that he did not envisage a possible exhaustion of the trust corpus — a result which might ensue if the principal is to be invaded without regard to his wife’s own income.

As for the situation existing at the time he made his will — wMch continued until his death— the testator’s wife was incurably ill. The trust which he created for her benefit was designed to assure her an income which would take care of her probable needs if, and only if, her social security payments were also applied to her support. In point of fact, he had actually used those payments for that purpose while he was alive, and there is no reason to believe that he wished that practice to be discontinued after he died. He certainly did not intend the social security payments of his hopelessly ill and incompetent wife to accumulate for her heirs and permit the trust principal, which he wished to preserve for his own issue, to be diminished and, perhaps, consumed.

As already appears from our treatment of the cases, the decisions relied upon by the petitioner (see Matter of Clark 280 N. Y. 155, supra; Reggemini v. Brooks, 236 N. Y. 184, supra; Holden v. Strong, 116 N. Y. 471, supra) are inapposite. The court in those cases concluded, not on the basis of the trust language alone, but on the strength of the will as a whole and other relevant factors, that a gift of principal was intended and that the testator’s almost exclusive interest was in the beneficiary, the remaindermen occupying a completely .subsidiary position. On the other hand, as we have seen, the present testator made it quite plain that his children were his primary concern and any provision for his wife from trust principal, as opposed to income, was clearly secondary.

It follows from what we have said that in the present case the trustee was privileged to take' the beneficiary’s independent income into account before invading principal.

The order appealed from should be reversed and the matter remitted to the Surrogate’s Court for further proceedings in accordance with this opinion, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

Scileppi, J. (dissenting). I dissent and vote to affirm.

In my view, the result reached by the majority is not only contrary to well-settled law, but completely disregards the plain language of the will.

It is axiomatic that the courts do not have the power — nor is it their function — to remake the will of a testator. Thus, if the language used in the will is clear, precise and unambiguous, there is no problem of construction; rather, there is an obligation of enforcement.

As this court stated in Matter of Bisconti (306 N. Y. 442, 445): The application of the rules of construction of wills is for the purpose of determining the intent of the testator where that intent is not clearly expressed by the testamentary words, and the rules of construction are to be disregarded when the language is clear and definite. It is well established that rules of construction are merely subsidiary aids. (Matter of Watson, 262 N. Y. 284, 293, 294.) If intention of a will-maker is to be found in the words used in the will and these are clear and definite there is no power to change them. (Matter of Watson, supra.) As is stated in Davids on the New York Law of Wills: ‘ When intention can be ascertained as a fact from the instrument itself * * * there is no occasion for a presumption in respect thereof, and the decision should riot be affected by the rules in question. Hence the rules of construction are to be disregarded where the decedent’s intention is clearly or sufficiently manifest, or where the language of the instrument is plain and its meaning obvious.’ (Vol. I, § 491, p. 805; see Matter of Rollins, 271 App. Div. 982, affd. 297 N. Y. 612.) ”

The clause in question on this appeal is clear and unequivocal. It establishes a trust, the income of which is to be paid for life to the testator’s incompetent widow, and then provides that, if such income be insufficient for the support and maintenance of [my wife], my Trustee shall so pay or use from principal sufficient moneys to provide for [my wife’s] support and maintenance, in the sole, absolute and uncontrolled discretion of the Trustee ”.

This language clearly makes the gift of principal as broad as the gift of interest. The gift of principal is not conditioned upon the particular needs of the widow but rather upon the insufficiency of the income to provide support and maintenance. In such a situation, the private income of the beneficiary cannot be considered. The applicable rule was succinctly stated by this court in Matter of Martin (269 N. Y. 305, 312): “ The primary question in this class of cases always is, does the will constitute an absolute gift of support and maintenance which it makes a charge upon the income from the estate and upon principal? If so, then the private income of the beneficiary cannot be considered. If, however, the gift is of income coupled with a provision that the principal may be invaded in case of need, the private income of the beneficiary must be considered in determining whether such need exists.”

In Martin, the court held that the private income of the beneficiary was to be considered in determining whether to invade principal. But, there, unlike the present case, the will provided for the invasion of principal ‘ ‘ as [the beneficiary] may require for her care, support and comfort, during her natural life ”.

In almost every case where the will in question provided for the invasion of principal, if the income from the trust was insufficient or in cases where the trust provided for the use of income and so much of principal1 ‘ as may be necessary ’ ’ with no limitation of the amount of principal which may be invaded, the courts of this State have uniformly found that such language constituted an absolute gift of support and maintenance without regard to the private income of the beneficiary.

Contrary to the assertion of the majority herein, the case of Rezzemini v. Brooks (236 N. Y. 184) is directly in point. In that case, as in this one, the committee of an adjudged incompetent alleged that it was the duty of the trustee to pay for the support and maintenance of the incompetent out of the income and principal of the trust which had been created by the will of the incompetent’s mother. At the time that the testatrix executed her will she was aware that her son owned certain valuable property and was in receipt of an income from the estate of his father. As in the instant case, the trustee in Ressemini represented the vested remaindermen and claimed that the incompetent’s income from all other sources must be exhausted before any invasion of principal was warranted.

In construing the clause in question, which reads as follows: If the income from my estate shall be insufficient for the proper support of my said son, then in that event, I authorize and empower my said trustee to expend so much of the principal thereof as may be necessary for that purpose ”, this court held: “ Our decision in the case of Holden v. Strong [116 N. Y. 471] involved the construction of a will wherein the testator gave to a trustee ‘ full power and authority to use so much of the trust fund, either interest or principal, as shall, in his judgment and discretion, be necessary for the proper care, comfort and maintenance ’ of the plaintiff so long as he should live. We held that the plaintiff there was entitled to support and maintenance even though he was able to support himself and had accumulated a fund which he had on deposit in a bank. The reasoning and principle laid down in that case we regard as controlling the case under consideration.” (Rezzemini v. Brooks, supra, p. 193.)

In other words, since the language of the clause—which is almost identical to language of the clause now before us — clearly conditioned the gift from principal solely upon the insufficiency of the income to provide for care and support and not upon the necessity of the beneficiary, it was held that the private income of the beneficiary could not be considered.

Matter of Clark (280 N. Y. 155) is another case in point. In Clark (pp. 158-159) the testator established a life trust for his widow and then provided: ‘ ‘ In the event that the income provided for my said wife under paragraph ‘ Fourth ’ above shall, in the judgment of my trustee, be insufficient for her every comfort and support, I authorize my said trustee to pay to her, in addition to income, such portion of the principal of the said trust as it shall from time to time deem necessary.”

In a proceeding for the settlement of the accounts of the trustee, an objection was made to the allowance of an amount paid out of principal for the benefit of the widow. This court held:

The provisions of the will are not ambiguous, the intent of the testator is clear from the face of the instrument, and we may determine for ourselves what the instrument itself contains. Ascertainment of the intent of the testator as shown by his will, taken as a whole, is our primary purpose, and, when ascertained, is to prevail over all other canons of construction (Matter of James, 146 N. Y. 78, 100; Matter of Buechner, 226 N. Y. 440). The will clearly provides for payment by the trustee in quarterly installments of the entire income from the trust and of so much of the principal in addition thereto as, in the sole judgment of the trustee, shall by it be deemed necessary for every comfort and support of the widow.
# # *
“ In conformity to that purpose and intent, the trustee is required to furnish every comfort and support for the widow which it may deem in a sound discretion necessary out of income and, if required, out of the corpus, even to the extent of exhausting the entire corpus of the trust, without taking into consideration or account the personal income of the beneficiary from any other source (Holden v. Strong, 116 N. Y. 471; Rezzemini v. Brooks, 236 N. Y. 184). What is necessary for the purpose is limited only by the amount of the income and the corpus of the trust. Whatever income the beneficiary may have from sources other than the trust is of no concern to the trustee in forming its judgment as to the amount necessary for her every comfort and support. The testator did not contemplate that his widow should be required to use her own personal income or to incur individual obligations for her comfort and support as long as there was anything in the trust that might, in the sound discretion of the trustee, be used for that purpose.” (Matter of Clark, supra, pp. 160-161.)

Matter of Johnson (46 Misc 2d 52) also involved a proceeding concerning an incompetent. In that case the will provided (p. 54): “ If, at any time, in their sole and unrestricted judgment and discretion, my Trustees shall determine that the income from said trust shall not be adequate for the comfortable support and maintenance of my said wife, then and in that event, I authorize and empower my Trustees, from time to time, to encroach upon the principal of said trust fund and pay therefrom to, or for the benefit of, my said wife, such portion of the principal of said trust as, in their sole and unrestricted judgment and discretion, my trustees may deem necessary and proper for the comfortable support and maintenance of my wife

In construing this provision of the will, the Surrogate found as follows (p. 56): “ When the language of earlier cases, beginning with Holden v. Strong (116 N. Y. 471 [1889]), Rezzemini v. Brooks (236 N. Y. 184 [1923]), and that of Matter of Martin (supra), and Matter of Clark (supra) is compared with the language above quoted in Paragraph ‘ fifth (2) ’ of the will of decedent, it appears to this court that the decedent intended to make an absolute gift of support and maintenance, which was a charge upon income and principal, and the court so decides. Therefore, the private income of the beneficiary cannot be considered in determining how much principal should be paid to the beneficiary.”

The Surrogate then went on to hold that the test for invasion of principal is solely whether the income is sufficient for support, and not whether the beneficiary needs the principal.

In Matter of Grubel (37 Misc 2d 910) the court was faced with a will which also provided, as in the case at bar, that in the event that the trustees shall find that the net income obtainable from a trust set up for the decedent’s wife “ will prove insufficient for the needs of my beloved wife ’ ’ then the trustees were authorized to withdraw from the corpus whatever sums may be necessary to enable the wife to live in a proper manner. The Surrogate held that the trust provisions constituted an absolute gift of support and that the other resources of the beneficiary were not relevant.

In Matter of Leahy (56 N. Y. S. 2d 555) the court was faced with a claim for funds by the State Department of Hospitals where the income beneficiary had been confined in a mental hospital. In finding an absolute gift of income and principal, the court held (p. 556): “ Only as to invasion of principal did the testator leave anything to the ‘ discretion ’ of the trustees. The will provides liberally that if the income should ever become insufficient for the comfortable maintenance of the beneficiary in accordance with her accustomed mode of living, then there is given to the trustees the ‘ power to advance to her, or to pay for her benefit, any additional sum from the principal of said trust fund as they in their discretion deem necessary.’ This discretion goes only to the amount of the invasion at any time. There is not any power given to decide whether or not there shall be any payment made at all.” (See, e.g., Matter of Van Gaalen, 38 Misc 2d 853; Matter of Connors, 34 Misc 2d 1043; Matter of Vaturi, 33 Misc 2d 295; Matter of Paster, 22 Misc 2d 4.)

It would appear from a review of the cases in this area that the language used in the instant will has acquired through judicial decision a definite and established significance. And, as the author of the majority opinion herein observed in his dissent in Matter of Gulbenkian (9 N Y 2d 363, 372-373): “ when a will contains language which has acquired, through judicial decision, a definite and established significance, the testator is taken to have employed the language in that sense and with that meaning in mind. (See Matter of Kroos, 302 N. Y. 424, 428.) ”

I agree with the courts below that the testator’s primary inten-' tion was to bequeath the income and principal of the trust for the support and maintenance of his widow without regard to her personal income. While it is obvious that testator was concerned with the welfare of his children and grandchildren, it is equally obvious, especially since testator was aware of his wife’s permanent incapacity and of her private resources, that her maintenance and support was his primary consideration. If he had intended the result reached by the majority, he could easily have made provision for his wife based upon need. This, hoAvever, he did not do. Having provided that if income would be insufficient to provide for the wife, that the trust be invaded, this court should not now remake the will, even though the result may be the depletion of the contingent estate of the children and of the infant contingent remaindermen.

Accordingly, I Avould affirm.

Judges Burke, Bergan, Keating and Jasen concur with Chief Judge Fuld; Judge Soileppi dissents and votes to affirm in a separate opinion in which Judge Breitel concurs.

Order reversed, etc. 
      
      . If any daughter died before the widow, the testator provided, that daughter’s share was to be held in trust for her children until they reached the age of 21 and, again, the trustee was given “sole, uncontrolled and. absolute discretion” to invade the principal for their benefit or to add to it any income which remained unused.
     