Opinion
Argued April 9, 1896
Decided April 21, 1896
Spencer Clinton for appellants.
George Wadsworth for respondents.
The learned guardian ad litem for the infant respondents takes the preliminary point that upon the record as presented this appeal cannot be entertained, as it does not appear that his clients were ever served with process.
It is sufficient answer to this suggestion that such a point ought to be brought to the attention of the court upon a formal motion to dismiss appeal after notice to all parties.
The record contains affidavits used in the proceeding to procure the appointment of the guardian ad litem which recite the due service of the summons and complaint on the infant defendants.
In making up the record for this appeal it was not necessary to incumber it with all the papers and proceedings in the cause, and it is fair to assume that if the matter of service had been duly challenged upon motion the proper proofs would have been produced.
The respondents raise a further point which is presented on motion made to dismiss the appeal upon the ground that the case has been settled.
The papers on this motion are voluminous and we have examined them with care.
In view of the conclusion we have reached upon the merits it has seemed to us the wiser course to deny the motion without costs and to entertain the appeal.
This action was brought for the partition of the real estate of Lewis F. Allen, deceased, and the will of the decedent was pleaded as a defense to the action.
The testator died in the city of Buffalo on the 4th day of May, 1890, leaving him surviving two children, a son and a daughter, and seven grandchildren. His son had five and his daughter two infant children.
The will is attacked as creating a trust which is to continue for a greater period than two lives in being at the death of the testator.
It is undoubtedly true that the will is inartificially drawn and that the draftsman did not always keep clearly in mind the scheme of the testator as limited by the statute. We are, however, of opinion that a careful reading of the will discloses the clear intent on the part of the testator to make a lawful disposition of his estate.
In approaching the construction of this will we are to be guided by two well-recognized rules, to the effect that the intent of the testator must be carried out if possible, and that the portions of the will in pari materia must be read together.
The testator at the outset bequeaths certain specific legacies to his son and his daughter. He then recapitulates transactions with and advances to his children and explains that his daughter has received a larger portion of his estate than his son; for this reason he declares it to be his will and intention that his children shall enjoy during their respective lives the income of his estate in the proportion of six-tenths to his son and four-tenths to his daughter. This explanatory portion of the will precedes the creation of the trust and indicates clearly that it was the dominant purpose of the testator to divide the income of his estate between his children in the proportions named and to dispose of the principal in the manner indicated by the trust.
Thereupon he gave, devised and bequeathed all the residue of his estate, real and personal, to trustees in trust, with power to sell and convey, invest and re invest. The trustees were directed to pay over to the testator's son six-tenths of the rents, issues and proceeds of the trust estate, or, in their discretion, to apply the same for the support and maintenance "of my son and his family during his natural life, or to his widow, if she survive him, during her natural life," and also to pay over four-tenths of the rents, etc., to his daughter, or to use and apply them "for the support and maintenance of my said daughter, Margaret Gertrude, and her children during her natural life."
The testator then instructs his trustees with great minuteness as to the manner in which they should deal with his estate in administering the trust. He directs them to divide his estate into two several funds or parts, one to be composed of six-tenths thereof and the other of four-tenths of the same, as nearly as practicable, the son's share to be composed of real estate and personal property on Grand Island, and the daughter's share of real estate and personal property in the city of Buffalo, and an inventory and appraisal of his entire estate were to be made by experts. The testator directed that the funds or parts should remain separate, distinct and independent and not be commingled in any way during the existence of the trust.
The will further provides as to the son's share that if the latter dies leaving a widow the trust as to that share should continue "so long as said widow shall live, and no longer."
We have thus disclosed the entire scheme of the testator. If the result he had desired to accomplish had been simply the division of the income of his estate during the lives of his son and daughter between them in the proportions named, there would have been no occasion for the creation of separate shares, as the estate could have been placed in trust as one fund to continue during the lives of the son and daughter. It is, however, manifest that the testator, under legal advice, found that he had three lives to deal with instead of two, as it was his desire to continue the trust embracing his son's share during the life of the son's widow, if she survived him. To meet this situation and avoid a violation of the statute it became necessary to create separate trusts as to the two shares.
We think the reasonable construction of the will leads to this result, and while there are separate sentences, read without reference to the context, which seem to indicate that the draftsman has not always expressed his ideas with perfect clearness, yet the will read as a whole and construed in the light of the manifest intent of the testator creates two valid and distinct trusts.
We do not deem it necessary to comment in detail upon the various provisions of the will relied upon as indicating a violation of the statute. We will, however, allude to the one which is most commented upon, being subdivision VIII, reading as follows: "From and after the decease of my son and his wife and of my said daughter, I give, devise and bequeath my entire estate, real, personal, mixed, unto my seven grandchildren, to wit: The two children of my daughter, Margaret Gertrude Allen, and the five children of my said son, William Cleveland Allen, each of said grandchildren to take one-seventh part of said estate, share and share alike, to them, their heirs, assigns forever."
This provision indicates some confusion of ideas and is not expressed in that clear and unmistakable language that should characterize a last will and testament, but we are of opinion there is no insuperable difficulty in construing it in such a manner as will sustain the validity of the will. This is an attempt to deal with both of the trust shares in a general clause, and it must be severally applied to each of the clauses as if it had said in express terms "on the death of my son, or his wife if she survives him, I give, devise and bequeath the estate in his trust share equally to my grandchildren per capita, and not per stirpes, and on the death of my said daughter the principal of her share I give, devise and bequeath in like manner."
The guardian ad litem makes the point that the power of sale, as expressed in the will, giving the trustees power to sell and to invest and re-invest the proceeds, saves this trust from the condemnation of the statute as the power of alienation is not suspended.
We think this position cannot be maintained, as the estate, notwithstanding the power of sale and its incidents, is still fettered by the trust.
We are of opinion that the disposition made of this case by the courts below was right, and the judgment appealed from should be affirmed, with costs.
All concur, except HAIGHT, J., not sitting.
Judgment affirmed.