Benedict v. Dunning , 97 N.Y.S. 259 ( 1905 )

Houghton, J. (concurring):

It seems to me that the'will - should be construed as giving a bequest by implication to the plaintiff on the death of the trustee, who failed to exercise the discretion vested in him to transfer the corpus of the estate prior to his death. From the extrinsic facts appearing, it seems plain that the testatrix must have intended that in case of the death of her husband, the executor, the plaintiff, her son, was to have her estate. The plaintiff and the testatrix, his mother, were on- friendly terms. The* property disposed of had ' come from plaintiff’s father, and lie and his mother each had a life estate in one-half, and on her death the whole- went to- him. He, released ah of his interest, to her, so that in-fact all that is disposed, of by the will came to the testatrix.through the-plaintiff. I cannot think that the testatrix intended to cut t,he plaintiff’s interest down to a mere life estate or that she intended to give him nothing except . a life estate in case her second ' husband, the executor,, should die , • not having exercised the right to turn it all over to him., The law is repugnant to adjudging that she died intestate if -any other construction can be put upon the will. If the plaintiff is confined to a life estate only,-the coipus of the estate still remains undisposed of On his death. There is grave- doubt as to the trust being valid.- It is indefinite as to "term,, because _ the- executor had. a right to termi- ■ nate it at any time he saw fit, by turning the entire corpus Over to the plaintiff; The executor and trustee having died so that he could not exercise that, discretion', it seems to' me that the. rules of law will , not- be violated by a holding that there is an implied bequest of the . • •principaras well as income to -the plaintiff,, and that by so doing the manifest intention of the testatrix will he carried out.

. However, for the purpose of arriving at,a decision of the case, I concur in the modification suggested in the opinion, of Mr. Justice Clanks. ' . '