
    Meredith Ho land, Trustee, Resp’t, v. Louis M. Howland et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 14, 1890.)
    
    Wills— Construction op.
    The will oí testator gave the residue of his estate to his sons and daugh ters, their heirs, etc., subject as to the sons’ shares to certain limitations, and in regard to the daughters’ shares to the trusts therein declared, and then gave such shares to trustees to invest the same and pay over the income to the daughters during their lives and upon their respective deaths to pay over the principal to the issue of the one so dying, etc. Held, that no title to the shares vested in the daughters; that their shares vested in the trustees and that upon the death of either daughter without issue her share should he distributed among the heirs-at-law and next of kin of the testator.
    Appeal from a judgment recovered on trial at the special term.
    
      Robert W Be Forest, for app’lts; Daniel Q. Rollins, for resp't
   Daniels, J.

The action was brought by the plaintiff as a trustee appointed to execute trusts declared by the will of Gardner G. Howland, deceased. He died in ¡November, 1851, leaving it will executed by him for the disposition of his estate. Doubts or disputes are stated to have arisen as to the rights and interests of his two daughters, Louisa H. Clendenin and Joanna H. Grinnell, and their solution depends upon the construction to be given to the twenty-first paragraph of the will. They have respectively attained the ages of sixty and forty-six ypars and upwards, and each of them is now without issue. And the controversy which has arisen involves the disposition of so much of the testator’s estate as is mentioned in this paragraph of the will and designed for these two daughters. This paragraph disposed of the rest, residue and remainder of the estate, and no other portions of the will are necessary to be considered for the determination of the present controversy. The testator at the time of his decease left nine children, and it was to provide for these childen by the division of his residuary estate that this paragraph was added to the will. It is in these words:

“ Twenty-first. All and singular the rest, residue and remainder of my estate and property, both real and personal, whatsoever and wheresoever, I do hereby devise and bequeath unto my eight beloved children, that is to say; William Edgar Howland, Abby Woolsey Howland, Robert Shaw Howland, Maria Louisa Howland, Rebecca Brien Howland, Meredith Howland and Gardiner Greene Howland, junior, and such other child or children as may hereafter be born to me, or wherewith my wife may be enciente at the time of my death, and to tlieir respective heirs, executors, administrators and assigns forever, to be divided equally between them, or share and share alike, including the issue of such as may die before me, such issue taking the same share as their, his or her parent or other ancestor would have taken if living, subject, however, in regard to the portions of my sons to the limitation herein next stated, and also subject in regard to the portions of my daughters to the trusts hereinafter declared in regard thereto, that is to say, with regard to the portions of my sons, my will and direction are that my said sons be put into the possession and enjoyment of the one equal half part of their respective portions as soon as they shall severally attain the age of twenty-one years, and the other half as they severally reach the age of twenty-five years; which latter half my executors are hereby directed to retain in their possession and control until such latter age, but in the meantime to pay to my said sons respectively the interest, dividends or other periodical income thereof. And with regard to the portions of my daughters, my will and direction are that my said executors, and the survivors and survivor of them he, and I hereby constitute them and him the trustees and trustee of the portions of my said daughters, respectively, during their natural lives, and I hereby give and bequeath the same to my said executors, and the survivors and survivor of them accordingly, in trust for my said daughters, respectively, and to invest the same in their or his names or name as such trustees or trustee, in the manner hereinafter directed, and to pay over the interest, dividends or other periodical income thereof to my said daughters, respectively, from time to time, to and for their own separate use and benefit, and upon their separate receipt, whether married or sole, during the residue of their natural lives, and upon their death, as each shall happen to die, to pay over and distribute the principal of the share or portion of the one so dying to her issue living at the time of her decease, including the issue of such as may then be deceased, equally, or share and share alike, the issue of any deceased child then living taking the same share as their, his or her parent or other ancestor would have taken if then living. And with regard to such of my children as may be minors at the time of my decease, I do hereby direct their before-named guardians and guardian to provide and furnish all the requisite funds for their genteel and suitable maintenance, education and support during their respective minorities, not, however, exceeding the annual sum of $1,000 for each child.”

And under the language employed in framing it, it has been claimed that these two daughters acquired the absolute title to their shares as they had been mentioned, and upon their decease without children that their respective shares will descend to their heirs and next of kin, or in accordance with the directions which may be contained in the will of either or each of them. And this construction and effect was given to the paragraph by the judgment from which the appeal has been brought.

It is true that by the language first employed in framing this part of the will the testator did in terms devise and bequeath the residue and remainder of his estate to his children. But this devise and bequest was not permitted to remain as it was in this manner at first expressed, but it was made subject to further and additional directions contained in this part of the will. After making the devises and bequests, the testator declared, so far as they were intended for his sons, that they should be subject to the limitations contained in this part of the will. These limitations as to the sons, however, have no effect upon the provisions made in favor of the daughters. But as to their provisions the will also proceeded to declare them “ subject in regard to the portions of my daughters to the trusts hereinafter declared in regard thereto.”

And this was a clear declaration of his intention to place the1 shares of the daughters in trust for their benefit. And that at1 once qualified the preceding language from which the absolute title might otherwise be inferred, to be intended to vest in the daughters themselves. After subjecting the devises andjbequests. to this qualification, the testator, in the same paragraph, proceeded to declare that the portions of his estate designed for his daughters should be vested in his executors, the survivor and survivors of them, as trustees for the daughters respectively during their respective natural lives. And he then added a further direction, giving and bequeathing these shares of the daughters to his executors in trust for them. And this trust was “ to invest the same in their, or his, names or name, as such trustees or trustee, in the manner hereinafter directed, and to pay over the interest, dividends or other periodical income thereof to my said daughters respectively from time to time, to and for their own separate use and benefit * * * during the residue of their natural lives.” There was no repugnancy between the directions contained in this part and the first part of this paragraph of the will, and they are all to be taken and construed together to ascertain and discover the intention of the testator as to the rights and interests designed to be vested in his daughters. The provisions are continuous in their character, all to be taken, as they were expressed, together to ascertain the object and intention of the testator. He at first employed language which, standing by itself, would have devised and bequeathed, the shares of these daughters absolutely to them. But he did not leave it unqualified, but immediately declared that it was subject to the trusts after-wards declared in regard thereto. And then he proceeded to declare what those trusts were intended to be. And by the declarations made for the creation of the trusts, it is evident that he did not intend either of these daughters to become the owner of the-shares in his estate provided for their benefit. But that his intention was to divide his estate -into so many different parts as he should have children at the time of his decease, and that the -parts intended .for these daughters should be vested in his executors, the survivors or survivor of them, and held in trust for the benefit of the daughters respectively, during the period of their natural lives. There was, accordingly, no creation, or attempt to create, an absolute estate in the daughters, and a subsequent reduction or divesting of the estate by other provisions contained in the will.

In this respect the case is an entirely distinguishable one from Campbell v. Beaumont, 91 N. Y., 464, qualified and limited as that decision has since been by Wager v. Wager, 96 N. Y., 164. What the court is required to do for the disposition of the case is to ascertain, as clearly as that may be done, the intention of the testator and to follow that intention. Hpon this subject it was said in the case last mentioned, “We are of the opinion that, although the language employed in making the devise to the daughter would generally import an absolute estate in the property, yet that the creation of a limitation over, clearly intended to deny her the power of disposing of it by will, and the force of the testator's intention, as derived from the provision for a remainder in the wife, and the scope and design of its provisions generally, fairly imply an intention on his part to confer a life estate only upon the daughter. While it is not competent for the courts to frame a will for the testator, or import new provisions into it for the purpose of carrying out a supposed intent, yet it has been uniformly held to be their duty to give such a construction to the provisions made, especially if they are couched in inexact and ambiguous phraseology, as will effectuate the general intent of a testator, as derived from an examination of the whole instrument.” Id, 172. And this principle was followed and applied in Roe v. Vingut, 17 N. Y. State Rep., 123 ; Matter of Paton, 111 N. Y., 480, 486; 19 N. Y. State Rep., 67; and Matter of McMulkin, 15 N. Y. State Rep., 709.

To dispose of the case upon the effect of the language first employed would clearly violate the intention of the testator. For he has declared that the devises and bequests, so far as they were provided for his daughters, should be subject to the trusts after-wards declared by him in his will. And the trusts to which he did afterwards subject these shares were legal and valid trusts as they have been provided for and sanctioned by the laws of the state. The creation of these trusts, as the language has expressed the intention to be, was the paramount object and intention of the testator for the control and management of these shares. And for their proper execution he devised and bequeathed the shares to his executors and the survivors and survivor of them as trustees.

Instead, therefore, of the title being vested in the daughters, they took no title whatever to either share of the testator’s estate. And no title could possibly vest in either of them as to this part of the estate during their respective lives. For the statute has declared that the creation of an express trust, as this clearly was, should vest the whole estate in the trustees in law and equity subject only to the execution of the trust And that the person or persons for whose benefit the trust is created shall take no estate or interest in the lands, but may enforce the performance of the trust in equity. 2 R. S., 6th ed., 1109, § 73.

And the creation of such a trust has already been held in other cases to be such a qualification of a preceding gift in favor of the beneficiary as to place the title in the executors, which would otherwise have vested in the beneficiaries. This was the nature of the decision made in Brewster v. Striker, 2 Com., 19, upon a will executed prior to the enactment of the Revised Statutes. And it was followed in Morse v. Morse, 85 N. Y., 53. And also in Taggart v. Murray, 53 N. Y., 233. The testator himself further appears to have entertained this view in framing this part of his will. For after the decease of the daughters respectively, the executors, survivors or survivor of them, were directed to pay over and distribute the principal of the share or portion of the daughter dying to her issue living at the time of her decease, including the issue of such as may then be deceased, equally share and share alike. This direction would have been entirely needless if it had been intended that the share should vest in the daughter. But as it was directed to be vested in the executors, the survivors and survivor of them, and the trust was to continue throughout the natural life of the daughter to be benefited, and no title to the property could consequently vest in the daughter, it became appropriate to direct in this manner for the -benefit of the issue that the capital of the estate should be paid over or transferred to such issue. The entire frame and scope of this paragraph of the will, as it is to be considered and construed together, evinces but one controlling intention. And that is, that the share of each of these daughters should be vested during their natural lives in the executors. And that deprived each daughter of any title whatever to the share appropriated for her benefit, and vested the title of each daughter in the executors during her natural life. And the cases of Barrus v. Kirkland, 8 Gray, 512 ; Grey v. Pearson, 6 H. L. Cases, 61; Reed v. Braithwaite, L. R., 11 Equity Cases, 514; Dixon v. Ramage, 2 Watts & Sergt., 142, and Vreeland v. Van Ryper, 2 C. E. Green, Eq., 133, are strictly in harmony with this construction.

Other authorities have been cited by the counsel for the respondent which are supposed to conflict with this construction of the will. But an examination of them will clearly show that no inconsistency exists between them and the construction already applied to this part of the testator’s will. For in each of these cases there was an unequivocal gift of the property in controversy to the devisee or legatee, or other person intended to be provided for. And after the making of the absolute gift, further contingent directions were made for the disposition of the property in that manner given. And as the contingent dispositions failed to take effect, it was held, and very properly so, that the person to whom the property was originally given became its absolute owner entitled to its unqualified control and disposition. This is the principle upon which these cases have been decided. And they establish the true construction to be that where property has been given to another and a future contingent disposition has been declared to be intended to be made of it, and that disposition because of the facts upon which it was made dependent did not arise, would not change the preceding gift, but would leave the donee the absolute owner of the estate. Such were the facts and the decisions made in Whittell v. Dudin, 2 Jacobs & W., 279; Mayer v. Townsend, 3 Beav., 443; Davies v. Merceron, L. R., 4 Ch. D., 182; Jackson v. Noble, 2 Keen, 590; Hulme v. Hulme, 9 Simons, 644; Campbell v. Brownrigg, 1 Phillips, 301; Eaton v. Barker, 2 Coll., 124; Norman v. Kynaston, 3 De Gex, F. & J., 29 ; McCullock v. McCullock, 3 Gif., 606; Winckworth v. Winckworth, 8 Beav., 576; Dawson v. Bourne, 16 id., 29 ; Re Young's Settlement, 18 id., 199. And other cases might very well be added maintaining the same principle.

They are, however, inapplicable to the construction which should be given to this will. For here the controlling fact on which these decisions were made is absent. And that is, that the actual gift, devise or bequest of the property was not made to either of the present claimants. But the estate, so far as they became interested in it, was vested in the executors in trust, leaving no interest whatever in either of these daughters beyond that of enforcing the performance of the trust. And as this trust was created to extend through the natural life of the daughter to be benefited, it followed that no title or interest in the capital of the trust at any time vested, or could vest, in either of these daughters. And the result will be if they, or either of them, shall die without issue, that then the share of the testator’s estate devoted to the creation of the trust for the person so dying will be distributed among the heirs at law and next of kin of the testator.

The judgment should, therefore, be so far reversed and modified as to declare this to be the construction and effect of this paragraph of the testator’s will.

The question of costs to be determined on settlement of the order.

Yajst Brunt, P. J., and Brady, J., concur  