Opinion
Argued June 5, 1876
Decided June 13, 1876
James B. Olney for the appellant. R.H. King for the respondents.
The Supreme Court, in the action brought to obtain a construction of the will of Lucas E. Brandow, decided that it vested in Elizabeth Brandow, his widow, a life estate in the whole real and personal property of the testator, and an authority to use so much of the real and personal estate beyond the annual income thereof as might be necessary for the education and maintenance of the testator's children during their minority. That action was tried at Special Term in 1859, and the judgment of the Special Term was affirmed by the General Term. All the persons interested were made parties, and no appeal was taken from the judgment of the General Term. That judgment is therefore conclusive as to all questions determined and adjudged thereby. Two questions only were adjudicated: first, that the widow took under the will a life estate in the whole property, and, second, that it conferred upon her a power to use the corpus of the property, if necessary, for the support and education of the minor children. The judgment did not purport to determine whether the power would survive the death of the widow, or that the provision for the support of the children during their minority out of the corpus of the estate was a continuing provision, terminable only by the expiration of their several minorities. The judgment, therefore, is not res adjudicata in respect to these questions.
The intention of the testator, derived from the language of the will, was to give to his sons his real estate, and to his daughters his personal property, subject to the life estate of the widow, and to the support and education of the minor children out of the whole property during the widow's life, and that at her death the actual division should take place. The language of the will is express and unambiguous, viz., "after her (the widow's) death, all the real estate which may be found is to be divided equally among my sons, and all my personal property which shall be found then shall be equally divided among my daughters." The preceding clause is as follows: "I do hereby will in trust to my wife Elizabeth all my property, both personal and real, whatsoever and wheresoever, during her lifetime. In consideration of which it shall be her duty to care, protect and educate our children until they are of age." The trust is by its terms limited to the life of the widow. The gift of the life estate is the consideration for the duty imposed upon her to provide for and educate the children. But the duty ceased with their minority. After the children arrived at age the widow was no longer bound under the will to maintain them. And this we think is the purpose and intent expressed in the words "until they are of age," and that this clause of the will cannot be construed as indicating an intent to charge the whole estate with the support of the minor children after the widow's death.
It is inconsistent with the absolute gift in possession upon her death, contained in the succeeding clause. We are not at liberty to say that the testator designed that his minor children should be supported out of the estate after the death of the mother, if she should die before they reached their majority, when the clear meaning of the words used is opposed to this supposed intention. He may not have contemplated the contingency of the death of his widow before that time, but it is the duty of courts to give effect to the intention expressed in the will, whatever they may suppose the testator would have done if the particular event which has happened had been foreseen.
In the views we have taken it is immaterial to consider the question argued at bar, whether the will created a valid express trust, or a power in trust. Whichever it was, it was limited to the life of the widow and terminated at her death. The judgment in this case charged the land of the testator with a lien to the amount of $297.03, in favor of the plaintiff's intestate, for expenses incurred by him from 1861 to 1863 in maintaining the minor children of the testator. Lucas E. Brandow died in 1869, leaving a widow and eight minor children, four sons and four daughters, surviving him. Soon after his death his brother, Nicholas Brandow (the plaintiff's intestate), and the widow were appointed administrators of his estate, with the will annexed. In 1861 the widow died, leaving Nicholas Brandow the sole administrator. He was, under the statute, guardian in socage of the infant sons of his brother, and after the death of the widow he assumed to act as guardian of all his brother's children, and continued to act as guardian until another guardian was appointed in 1863. During this time he incurred the expenses which by the judgment are charged on the land devised by Lucas E. Brandow to his sons. They were incurred in making a home for and supporting all the children as one family. There is in the findings no separation of the items chargeable to each child, and there is no proof from which it can be ascertained what part of the expenses incurred was for the support of the sons and what part for the daughters. The judgment proceeds on the theory that the will charged the support of the minor children on the whole estate after, as before, the death of their mother. This construction of the will cannot be maintained. The land after the mother's death was not chargeable with the support of the daughters, and the judgment was therefore erroneous. We should be glad to find a legal ground for upholding the judgment of the Special Term. The plaintiff's intestate acted in good faith. The expenses he incurred were reasonable, and he acted, as is apparent, with a sincere desire to do what was best for his brother's children. But the defendants may insist upon their legal rights, and so insisting we have no alternative but to affirm the order of the General Term, and direct judgment absolute to be entered for the defendants upon the stipulation, without costs to either party in this court.
All concur.
Order affirmed and judgment accordingly.