Opinion
February, 1897.
Calvin S. McChesney (Charles E. Patterson and Charles R. Ingalls, of counsel), for plaintiffs.
A.J. Perry (R.A. Parmenter, of counsel), for defendant Youngs, as administrator with the will annexed, and other defendants.
E.W. Douglass, for defendant bank.
Cloyd Burns, for other defendants.
I think that the testator intended by his will to give his property to his wife and daughter absolutely in equal shares.
The law is well settled that where an estate is given in one part of a will in clear and decisive terms such estate cannot be taken away or cut down by any subsequent words that are not as clear and decisive as the words giving the estate. Roseboom v. Roseboom, 81 N.Y. 356; Clarke v. Leupp, 88 id. 228; Campbell v. Beaumont, 91 id. 464; Washbon v. Cope, 144 id. 287.
The testator could hardly have used more apt language to convey the absolute estate in fee than the words employed by him at the commencement of the first item of his will, viz.: "I give, devise and bequeath unto my beloved wife Nancy and to my daughter, Ada F. Tuthill, absolutely, all my real estate and other property of whatever name or nature."
The words "to be held and used by them jointly for their support so long as they may both live together," immediately following, are the only words in the will that can be claimed to limit or qualify the preceding gift of an absolute estate, but it appears to me that if this claim has any force with reference to the words themselves they cannot reasonably be so construed when viewed in the light of the entire will.
Whether words in a will attached to a gift explaining the desire of the testator in respect to its use constitute a limitation of the bequest, or are to be regarded as advisory only, depends upon the intention of the testator as gathered from all the provisions of the will bearing upon the subject. Riker v. Leo, 133 N.Y. 519.
It appears from the will that the testator had in his mind two contingencies with reference to the use of his estate by his wife and daughter — first, the use of it in case they lived together; and, second, the use of it in the event of a disagreement between them and their ceasing to live together.
After using language adequate to give his wife and daughter, who were the natural objects of his bounty, all his property absolutely, the testator in the same item expresses his desire that the property should be held and used by them jointly for their support so long as they may live together, and afterwards in the second item makes provision for selling the real estate and dividing the whole property equally between them in the event of their disagreeing and ceasing to live together.
It was left wholly to the discretion of the wife and daughter as to whether or not they should live together and as to how long they should live together. There is nothing mandatory in this respect. In this, as well as in respect to the division of the property in case they chose to separate, much was left to their discretion and agreement, and arbitrators are provided for in the event of their failing to agree upon a division of the property.
The will is wanting in any expression showing that the testator intended by the direction concerning the joint use of the property by his wife and daughter while they lived together to limit or qualify the estate he had given them in the first clause of the first item. On the contrary, the language of the entire will following the first clause of that item goes to confirm the view that he intended to give them an absolute and unqualified estate in all his property. For instance, he provides in the second item that in case of ceasing to live together the real estate shall be sold and — not the proceeds of the real estate alone — but the whole property be divided equally between them; and also substantially the same provision is contained in the fourth item; and in the third item he provides that in case the wife claimed dower instead of accepting the provisions of the will all the personal property should be divided between them — the wife to take one-third and the daughter two-thirds.
It is true that the proof is that the wife and daughter continued to live together after the death of the testator so long as they both lived, and that the wife took the provisions for her benefit contained in the will instead of her dower, so that the provisions of the second, third and fourth items of the will never had to be carried into effect, but we have a right to examine those provisions so far as they may aid in the construction of the language used in the first item.
The fact that there is no clause in the will bequeathing or devising any remainder to any one is also important in support of the construction here given.
Two other views of this will lead to the same result:
First. If the will should be held to contain simply a gift of the use and income of the estate instead of the fee or the absolute title, there being no disposition in it of the remainder, it should be held under the authorities that there was a devise and bequest of the fee by implication to the parties to whom the income is given. Masterson v. Townshend, 123 N.Y. 458; Phillips v. Chamberlain, 4 Ves. 51; Earl v. Grim, 1 Johns. Ch. 497.
Second. If the gift in this will to the testator's wife and daughter should be held to be only of a life estate, there was a remainder undisposed of as to which the testator died intestate, and to which the wife and daughter would have been entitled under the Statutes of Distribution and Descents.
In either case the plaintiffs as administrators of the wife and daughter, respectively, would be entitled to their personal property.
But it is claimed that the testator's personal estate has not been administered upon, and that the administrator of DeWitt Tuthill with the will annexed is entitled to it for the purposes of administration; and that the construction of the will is premature at this time and should not be had until the question arises as to who is entitled to the estate when the time for distribution arrives. The validity of this contention depends upon the question as to whether or not there are at the present time any creditors of the estate of the testator. The rule of law is that the trust estate of executors who are also the only devisees and legatees is solely for the benefit of the testator's creditors, and when they are paid the trust estate sinks into and is merged with the beneficial interest, and such devisees and legatees become vested by operation of law with the legal title of all the testator's estate. Blood v. Kane, 130 N.Y. 514; Matter of Mullon, 74 Hun, 358; affirmed, 145 N.Y. 98.
It is claimed here that the burden of proof is on the plaintiffs to show that there are in fact no creditors, and that this has not been done. Under the circumstances of this case it is not altogether clear to me that in this respect the burden is on the plaintiffs. But conceding that it is, it appears to me that there is sufficient proof to shift that burden to the defendant Youngs, as administrator with the will annexed. It appears that upwards of ten years have elapsed since the death of the testator, and that he left a personal estate valued at more than $100,000, which has since largely increased in value. These facts alone create a very strong presumption that there are no debts. One of the plaintiffs who is a near relative of the family and is one of the administrators of the wife and daughter, and who is in a position, therefore, to be likely to know of any existing debts, testifies that he has no knowledge of any debts, and that his information is that there are no debts.
I think, therefore, that enough appears to at least shift the burden of proof in this respect to the defendant Youngs, as administrator with the will annexed, if it is not primarily upon him. He is here asking the court to award these securities to him for the purposes of administration. But he has made no allegation in his answer, and has furnished no proof, that there are any outstanding claims against the estate.
It seems to me clear, however, under the proofs and under the circumstances of this case, that there are no outstanding debts against the testator's estate. If that is so there is no trust in relation to the estate to be executed and no need of further administration. The title or estate which the widow and daughter took as executrices ended before their death. They were also entitled to the beneficial estate as legatees under the will. These two estates meeting in the same persons were merged, and the widow and daughter became vested in their own right, each to an undivided one-half of the entire interest in the property absolutely. See Blood v. Kane and Matter of Mullen, above cited.
Upon the death of the daughter Ada F., unmarried and intestate, her mother, Nancy Tuthill, being her only heir-at-law and next of kin, succeeded to and became the absolute owner of the entire property and estate of the daughter, but the administrators of their respective estates are, notwithstanding this fact, entitled for the purposes of administration to the equal undivided one-half of the property.
Nor do I think that there is any force in the suggestion that this court has not jurisdiction of this action because of any jurisdiction vested in the Surrogate's Court under the law, or by virtue of proceedings which are pending in the Surrogate's Court under the statute to enable an administrator or an executor to discover assets of a decedent. The proof shows that this action was commenced before that proceeding was instituted, and the question of title cannot be determined in that proceeding. Matter of Wing, 41 Hun, 452.
The plaintiffs should have judgment that they, as the administrators of Ada F. Tuthill, are the owners of and entitled to the undivided one-half of the property and securities mentioned in the complaint and to the immediate possession thereof; and that they, as the administrators of the estate of Nancy Tuthill, are the owners of and entitled to the other undivided one-half of said property and securities mentioned in the complaint and to the immediate possession thereof, with costs to all parties to be paid out of the estate.
Ordered accordingly.