Opinion
No. 43/338.
07-10-1918
WHITE v. GRAVES et al.
Minton & Day and C. Franklin Wilson, all of Morristown, for complainant. Francis H. McGee, of Trenton, and Gilbert Collins, of Jersey City, for answering counterclaimants. Raymond C. Matthews, of Morristown, for certain answering defendants.
Bill by Mary R. White, trustee under the will of Edwin Graves, deceased, against Edwin Augustus Graves and others. Decree advised in accordance with opinion.
Minton & Day and C. Franklin Wilson, all of Morristown, for complainant. Francis H. McGee, of Trenton, and Gilbert Collins, of Jersey City, for answering counterclaimants. Raymond C. Matthews, of Morristown, for certain answering defendants.
LANE, V. C. The case requires the construction of the twelfth (called in the will the eleventh) paragraph of the will of Edwin Graves, deceased, and that of Mary J. Graves, deceased. The paragraph of the Edwin Graves will reads as follows:
"Eleventh. The residue of my estate which I have hereinbefore given to my executors in trust for my family, I desire and direct them and the survivor of them to so hold in trust as long as my wife lives, and at her decease I direct them to sell my real estate, or such real estate as they may have purchased according to the provisions hereinbefore contained and convert the same into money and to pay the same with the proceeds of the personal property held by them in trust, to my children or to benevolent objects, in such proportions, as my wife may by her will or other writing in the nature thereof appoint, having entire confidence in her judgment in that respect, and having no desire to give to my children any more of my estate than I have herein given to them, unless some unforeseen contingency may render such increase necessary or advisable, of which I wish my wife to be the judge."
The question is whether, under this provision, the children take under the will, unless the wife has appointed to benevolent objects, on whether the children take only such shares as the wife has seen fit to appoint to them.
By the eighth paragraph of his will the testator had provided:
"Eighth. All the rest and residue of my estate, both real and personal, wheresoever the same may be situated, I give, devise, and bequeath unto my executors hereinafter named and to the survivor of them, in trust to and for the following uses, purposes and trusts: To permit my wife and family to occupy my present residence as heretofore, to rent out any other real estate I may own and to invest the personal estate according to their discretion and receive the rents, and income and pay the same to my wife Mary, semiannually, to be by her appropriated for the support and maintenance of my family and the education of my children, and the surplus to appropriate to benevolent objects according to her discretion and according to my practice heretofore."
The wife, Mary J. Graves, upon her death, left a will, the third paragraph of which reads as follows:
"Third, in pursuance of the power of disposition and appointment given to me in thelast Will and Testament of my deceased husband, Edwin Graves, and after carefully considering all existing circumstances and probable future conditions, I do appoint and dispose of the property and estate which comes within the power hereinbefore stated as follows:
"During the many years intervening since the death of my said husband I have annually devoted to charity considerable portions of the income by me derived from my said husband's trust estate, which gifts and benefactions I feel would completely fulfill the desires of my husband concerning benevolent objects, therefore, and in further consideration of the present circumstances of my family, I make no further gifts to benevolent objects.
"A. In the exercise of the power of disposition aforesaid, I give to my daughter, Mary R. White, the pictures, household furniture, and articles of household use, which were my husband's at the time of his decease; and the books which were my husband's, I direct shall be equally divided between my sons, Edwin A. Graves and George M. Graves.
"B. My daughter, Mary R. White, and my son, Walter Graves, having jointly loaned to the said trust fund of my said husband's estate the sum of thirty-two hundred and seventy dollars, I do order and direct that of said sum, sixteen hundred and thirty-five dollars be paid to my daughter, Mary R. White, and sixteen hundred and thirty-five dollars thereof be paid to Julia R. Graves, the widow of my said son, Walter Graves.
"C. The residue of said trust fund, thereafter remaining, I do order and direct to be divided in four equal parts, one-fourth of which I give and bequeath to my son, George M. Graves; one-fourth part thereof, I give and bequeath to my son, Edwin A. Graves; one-fourth thereof, I give and bequeath to my daughter, Mary R. White. It is my desire, however, that my children securely invest the legacies in this paragraph given to them, and use the income for their personal benefit during their respective lives, with remainder on the decease of such legatee to his or her children. If any of my children in this paragraph named be deceased at the time of my death leaving child or children, then such child or children of my deceased child shall take the part which his, her or their parent if living at the time of my decease would have taken. It is my desire that my homestead premises after my decease be retained for the use of my family or be rented until such time as a fair and adequate price can be obtained for it.
"D. Another one-fourth part thereof I give and bequeath unto Julia R. Graves, widow of my said deceased son, Walter, but I charge this gift with the payment of twenty-two hundred dollars, which by my said son, Walter, was owing to me at the time of his decease. If, at the time of my death, the said Julia R. Graves be deceased, then I give and bequeath that which she would have taken if living under this legacy unto my said daughter, Mary R. White."
The widow, Mary J. Graves, was the third wife of Edwin Graves. He left him surviving two sons by his first wife, one son by his second wife, and a daughter by his third wife. At the time of the death of Mary J. Graves, the two sons by the first wife and the daughter by the third wife were surviving. The son by the second wife died, leaving a widow, Julia R. Graves. As has been so often said, the cardinal principle in the construction of wills is to get at the real intention of the testator. This is usually to be gathered from the will itself, although attendant circumstances may, of course, be taken into consideration, if the language used, be of doubtful meaning. Technical rules of construction are designed to assist the court in, and not prevent the court from, ascertaining the intention of the testator. Deats v. Ziegener, 82 N. J. Eq. 605, 89 Atl. 31. If I could see my way clear, I would put upon the will the construction insisted upon by the respondents, to wit, that the children take under the will, and that the power of appointment to the wife was limited to designate such benevolent objects as she saw fit, and that the words "in such proportions" apply either to proportions between children and benevolent objects as classes, or proportions among benevolent objects. If so construed, the testator would not have made it possible that, in the absence of an exercise of the power of the appointment by the widow, he would have died intestate as to the entire residue of his estate; there would be secured to the children, in the absence of an appointment by the wife to benevolent objects, an equal division of the estate; and the widow would not have had it placed within her power to discriminate among the children, only one of whom was hers.
My first impression, upon reading the will, without a knowledge of the attendant circumstances, was that under it the widow might apportion among the children and benevolent objects and each of the members of the classes. It was not until the result of such a holding was brought forcibly to my mind that I thought I could see that another construction might be placed upon the language used. I have examined the will since in the light of the arguments and briefs of counsel, and have endeavored to ascertain whether there was any such doubt upon the face of the will as that, considering the surrounding circumstances, the court might be permitted to put upon the will such a construction as would result in a fair and reasonable distribution of the estate. I have failed to find such a doubt. The language used is not technical. The draftsman undoubtedly, in reducing to writing his ideas, used the language which first came into his mind to express them. It seems to me that, under these circumstances, the impression which is made by a first reading is more likely to convey to the reader the real intention of the draftsman than the impression which is only arrived at by a careful, technical scrutiny of the language used and the application of technical rules of construction. I have tried both methods, and have been unable to shake my first impression. I think that the phrase "in such proportions" applies both to children and benevolent objects; that the testator intended to give his wife complete power to apportion his estate among his children and benevolent objects in such manner as she should deem proper under the circumstances existing at the time of the making of her will. The respondents would read the clauses in the will as follows:
"To my children, or to benevolent objects, in such proportions as," etc.
I cannot so read them, and I think that the latter clauses are in opposition to any such reading.
The appointment made by Mary J. Graves to Julia R. Graves, the widow of the deceased son, is admittedly void. So, also, is the attempt to charge upon the residue moneys alleged to have been loaned by Mary R. White and Walter Graves to the estate, as is also the attempt of the testator to interfere with the enjoyment of the estate by the beneficiaries. That the testator has, however, included within her will these void provisions, does not vitiate the valid appointments. I think she validly appointed to the two sons by the first marriage and the daughter, Mary R. White, each one-fourth of the estate.
This leaves one-fourth undisposed of, and of which the testator, Edwin Graves, is now intestate, unless the residuary clause of the will of Mary J. Graves may be considered an appointment of this quarter to her daughter, Mary R. White. A power of appointment may be exercised in a residuary clause. It is not necessary that technical words be used; if it clearly appears from the document that the power of appointment was intended to be exercised, it will be considered as having been exercised. That the testator had in mind that, although she had previously disposed of the whole of the residue of her husband's estate, yet some contingency might arise, as has arisen, by which there would be a residue undisposed of, is clear. In the residuary clause of her will she distinctly refers, not only to the residue of her estate, but to the residue of the trust fund. Her intention was that if, for any reason or other there should be anything left over not legally disposed of, that residue should go to the daughter, Mary R. White. I think, therefore, that there was an appointment by the will of Mary J. Graves of the illegally appointed quarter to Mary R. White.
It is lastly insisted by respondents that, because it appears that the two sons by the first wife are much more in need of assistance than the daughter by the third wife, the testator, Mary R. Graves, committed a fraud upon the power. The testator, Edwin Graves, expresses entire confidence in the judgment of his wife, and makes his wife judge of the happening of the unforeseen contingency referred to in his will. It would have to be a very clear case indeed before this court would interfere, and substitute its judgment for the judgment of the person designated by the testator. While it is true that the daughter, Mary R. White, is financially in a much better position than the two sons by the first marriage, it is likewise true that she is a woman and they are men, and that they are much older than she, and there fore, in the nature of things, will not require assistance so long as she may. I do not think that there has been such discrimination in this case as would permit the court to find that there was fraud.
It is suggested in the briefs of counsel that the poverty of the two sons by the first wife is the only unforeseen contingency which would warrant the widow in appointing to children rather than to benevolent objects; but this does not follow. The will of Edwin Graves was made in 1860. While the provision made by him in his will at that time may have been ample for the children, at the time of the making of the will of Mrs. Graves in 1912 such provision may have been totally inadequate. Conditions have changed. The value of money has fluctuated to a great extent The testator does not require that the unforeseen contingency should be such as would make it necessary that there should be an increase; he says, "necessary or advisable," and he makes his wife the judge.
I will advise a decree in accordance with these views, which decree will provide for the immediate liquidation and distribution of the estate. Decree may be submitted on two days' notice.