Matter of Battell , 286 N.Y. 97 ( 1941 )

I dissent from the decision about to be made.

The will of Joseph Battell, which bears date February 27, 1868, and was probated in Surrogate's Court, Kings County, August 11, 1874, is before us for construction. After making substantial bequests in favor of his two brothers, his five sisters and various public, charitable and educational institutions, the testator divided his residuary estate into as many equal shares as there should be nephews and nieces surviving him, or who had predeceased him leaving issue who survived him, one of such shares being allotted to each nephew and niece, or to surviving issue of any deceased nephew or niece, to be held upon a separate trust for the life use of such beneficiary. The last of the trusts thus created terminated when the testator's niece Ellen Battell Stoeckel died on May 5, 1939, a resident of Norfolk, Connecticut.

Ellen Battell Stoeckel was the daughter of the testator's brother, Robbins Battell. She is survived by no relatives closer than cousins. Upon the final accounting by trustees of the fund of which she had life use, the present controversy arose which has led to a judicial construction of the testator's will to determine who are the persons intended by him to receive that fund upon the termination of the intermediate estate.

The Surrogate ruled that, upon a provision of the testator's will, presently to be considered, the trust fund should be distributed to Rosa E. Tuttle, who is not a lineal descendant of a brother or sister of the testator, but is a first cousin of Ellen Battell Stoeckel on her mother's side. The Appellate Division reversed the Surrogate's ruling, rejected the claim of Rosa E. Tuttle, who is the present appellant, and decided the intention of the testator to be that upon the termination of the intermediate estate the principal of the trust should go to heirs of the Battell blood only — the lineal descendants of the testator's brothers and sisters — who are cousins of the life tenant Ellen Battell Stoeckel on her father's side.

After making provision for the trust funds of which his nephews and nieces were given the life use, the testator directed that upon the termination of such use the distribution of the principal of the trust should be governed in each instance by the following direction: "Second. * * * And at his or her death to assign transfer and pay over the same to his or her lawful issue if any there shall be then living: And if there be no such issue when (sic) living, then and immediately upon the decease of such nephew or niece to assign transfer and pay over the same to such person and persons as are then by law the lawful`heirs-at-law' of such nephew or niece and in such shares and proportions as they would by law inherit (as heirs at law) from such nephew or niece."

It is noteworthy that in the original will the words "then" and "heirs-at-law" as they appear in the provision quoted above, were underlined by the testator. It should also be said that words in other provisions of the will bore like underlining, — clearly indicating, as I believe, a desire by the testator to give emphasis to words thus marked.

Our inquiry to ascertain the distributees whom the testator intended should take the fund here involved is rewarded by finding in words of his own choice a clear expression of his intention upon that subject. "The intention of a willmaker is to be found in the words used in the will, and when these are clear and definite there is no power to change them." (Matter ofWatson, 262 N.Y. 284, 293.) Here the testator has expressly provided that when one of the trusts created by him is terminated by the death of a niece without issue, the fund itself shall be paid over "to such person and persons as are then by law the lawful `heirs-at-law' of such * * * niece and in such shares and proportions as they would by law inherit (as heirs at law) from such * * * niece."

Significant, I think, is the phrase "then by law" in the use of which the testator was moved to underline the word "then." With commanding force the phrase expresses the testator's intention that the distributees shall be such persons as shall be "the lawful heirs-at-law of such * * * niece" on the date of her death, which in the present case was May 5, 1939. On that date, under the New York statute of descent then effective (Decedent Estate Law [Cons. Laws, ch. 13], § 83, subds. 6 and 10 [L. 1929, ch. 229, § 6], the only person who was "then by law" an heir at law of Ellen Battell Stoeckel was the appellant, Rosa E. Tuttle.

The will bears evidence of skilled draftsmanship. If the testator had intended — as the Appellate Division has ruled — that upon the death of a nephew or niece who was a cestui quitrust the principal should go to relatives of the testator's own blood, we would expect to find a clear provision to that effect. The preparation of such a direction would have been a simple commission for the expert draftsman. Instead, as we have seen, the accurate use of the word "then," underlined by the testator for emphasis, makes the date of death of the life beneficiary a controlling factor and, when considered in its context, serves to designate as distributees those who are "then by law the lawful heirs at law of such nephew or niece." In reaching that conclusion — with special reference to the testator's emphasized use of the word "then" — I have been influenced by the rule that "Lines of inheritance are governed by statute and it must be assumed that the [testator] knew that those lines could be changed at any time." (Matter of Koch, 282 N.Y. 462, 465;Gilliam v. Guaranty Trust Co., 186 N.Y. 127, 138.)

The language which we are now construing is similar to the testamentary provision considered in Matter of Waring (275 N.Y. 6). There, where the distributees to be ascertained were designated as "the next of kin of the said John, according to the laws of the State of New York," this court ruled that such language required the application of a statute effective prior to September 1, 1930. But the court added (p. 10): "It was not the estate of the son which passed at his death, nor did it pass by his will. The estate to be distributed at the death of the son was the estate of the father passing under the father's will." In the will involved in the case at bar the testator was careful to use the words — "and in such shares and proportions as they would by law inherit (as heirs at law) from such nephew or niece" — thereby indicating an intention contrary to that expressed in the will considered in Matter of Waring (supra). The intention expressed in the will considered inMatter of Waring (supra) was that the property should be distributed as the estate of the testator passing under his will; in the will now before us there is clearly manifest an intention that the trust fund shall pass as the estate of the niece to be distributed as if she, not the testator, died intestate. Accordingly, if the fund had belonged absolutely to the niece, it would follow that upon her death in 1939 it would go to her only heir-at-law, the appellant Rose E. Tuttle. Such, I think, was the test expressly chosen by the testator to determine the distributees.

Of equal importance to our inquiry is the suggestion found inMatter of Waring (supra, at pp. 13, 14), "Had the testator here said merely that the remainder should pass according to the laws of the State of New York in effect at the time of the deathof the son, distribution under the provisions of section 83, subdivision 4, of the Decedent Estate Law might have been made." (Emphasis supplied.) That statement foreshadowed our present problem and suggests the answer. (See, also, Matter of Koch,supra.)

It is for these reasons that I dissent and vote to reverse the order of the Appellate Division and affirm the decree of the Surrogate, except as to his ruling upon commissions claimed by the deceased executor.

LEHMAN, Ch. J., FINCH and CONWAY, JJ., concur with RIPPEY, J.; LEWIS, J., dissents in opinion in which LOUGHRAN and DESMOND, JJ., concur.

Order affirmed, etc. (See 286 N.Y. 722.)