Stryker v. Sands

The opinion of the court was delivered by

Wacheneeld, J.

Thomas S. Sands married his second wife, Emma A., in 1916 and died in July, 1938, leaving a last will and testament wherein, after directing all his debts and funeral expenses be paid, he gave the rest, residue and remainder of his estate to his son, William M. Sands, and daughter, Elizabeth S. Hughes, in equal shares upon condition they “shall provide a home and maintenance for my wife, Emma A. Sands, for and during her natural life, if she shall so long remain my widow. In the event of her remarriage, this obligation on the part of my said son and daughter shall cease. The provisions heretofore made for my said wife, Emma A. Sands, shall be received and accepted by her in lieu of dower in my real estate.” The will was dated June 28, 1937.

Shortly after the will was probated, Emma A. Sands executed several instruments at the request of the executors releasing her right of dower in and to the real estate owned by the decedent at the time of his death and áccepted in lieu thereof the benefits stipulated in the will.

During the latter part of her life, Emma A. Sands alleged she was ill and had to expend various sums of money for medical expenses for which no reimbursement was made. . In April, 1948, she brought suit in the Court of Chancery against the defendants, William M. Sands and Frederick W. Hughes, as executors under the will of Thomas S. Sands, against William M. Sands individually, and against Elizabeth Hughes, charging the defendants failed to furnish proper maintenance in accordance with her needs and necessities, causing her to expend substantial amounts of money for her maintenance; that she had become ill and was under the care of a physician and despite requests and demands the defendants refused to take care of such needs and had not properly maintained her in accordance with the terms of the will of her husband.

The cause was referred to Yice-Chancellor Jayne and, after a pretrial conference, it was set for hearing on December 15, 1948. On October 30, 1948, Emma A. Sands wrote a letter to Judge Jayne, so designated by the new Constitution, and to counsel in which she said she did not realize what it really meant when the suit was started and asked that it be discontinued “as I have always been satisfied with the support that I have received from those in charge.” As a result of this letter, an order of dismissal was filed December 1, 1948.

Emma A. Sands did not remarry. She died January 6, 1949, leaving a will executed June 29, 1937, which gave her estate to a son of an earlier marriage, Norman R. Stryker, and appointed him sole executor. On March 28, 1949, the son, as executor, filed his complaint setting forth the' facts herein narrated and alleging he had expended the sum of $650 on account of the funeral expenses for the burial of Emma A. Sands and asking, amongst other things, that the defendants, William M. Sands and Elizabeth S. Hughes, be required to pay to him the medical expenses and funeral bills.

In a pretrial order it was stipulated the cause be decided upon the admitted facts therein contained. The court entered judgment for the defendants, holding the plaintiff’s right to maintain the action as executor of the estate of Emma A. Sands rose no higher than that of the decedent in her lifetime and that the nature and extent of the maintenance to be furnished depended upon the intention of the testator as expressed in his will and the funeral expenses were not comprehended or included therein. Appeal was taken to the Appellate Division and certified here.

The disclaimer written by the testatrix, inferentially at ieast, indicates the litigation instituted in her lifetime was stimulated and coerced. She expressed a lack of knowledge as to its true import and a complete satisfaction with the support and maintenance received, being fully cognizant of the refusal of the executors of her husband’s estate to pay the medical expenses allegedly incurred.

This conclusion was never changed during her lifetime but upon her death the claim she had waived and which she had directed in writing be discontinued and withdrawn was again made. She was satisfied but her contentment did not, together with her estate, descend to her heir, who shortly after her death demanded what she in her lifetime in effect had forgiven. The anxiety of the plaintiff to reverse the determination of his testatrix and selfishly acquire for himself what she never wanted is in part indicated by his premature institution of suit on March 28, 1949, long before he was qualified as executor, which did not occur until April 26, 1949.

This was the factual background which the court leaned on heavily in disposing of the demand for medical expenses, holding the representative’s right to maintain a particular action is no greater than the right possessed by the decedent.

The testatrix in her lifetime expressed full satisfaction with the support she received and abandoned her claim for medical expenses after mature thought and consideration. The estate of the testatrix represented by the plaintiff is bound by the act of the testatrix. Her act is his act and her waiver of any of her rights is his waiver. Levy v. N. Y. Life Ins. Co., 238 App. Div. 711, 265 N. Y. Supp. 377 (1933); affirmed, 266 N. Y, 570, 195 N. E. 204 (1935). By her letter she acquiesced in the defendants’ contention that they had supplied adequate support to her and should not be held liable for the alleged medical expenses which were the basis of her original action and a part of the plaintiff’s claim here. In a somewhat similar situation, the court, in Topkis v. Delaware Hardware Co., 23 Del. Ch. 125, 2 A. 2d 114 (1938), held:

“If Louis Topkis were living and were the complainant in this bill and were admitted to have acquiesced in what the amendment of 192-1 accomplished, he would not be heard after all these years to ask a court of equity to take from the individual defendants what he had freely bestowed and to undo transactions which, if he did not suggest, he was aware of and acquiesced in. His executor’s rights can rise no higher than his.”

So, here, the waiver and acquiescence of the plaintiff’s testatrix should be, as it was, taken into consideration by a court of equity before it takes from these defendants money the plaintiff’s testatrix did not think she was entitled to and to which she affirmatively disavowed any claim. We think there was justification for denying a recovery in this regard and are content with the disposition made by the court below.

This, too, disposes of the question raised as to the court’s right to receive and consider the contents of the letter referred, to. The pretrial order recited that the earlier suit was dismissed as a result of the letter, fairly presupposing that the 'court would consider its contents, which would seem necessary in order intelligently to pass upon the facts involved. Any statements made by the testatrix which would be evidential against her were she still living and the plaintiff in this suit are equally evidential against her executor. Brice v. Atlantic Coast Electric Ry. Co., 102 N. J. L. 288 (Sup. Ct. 1926); Stiles v. Newschwander, 139 N. J. Eq. 1 (Ch. 1946). Why the truth or the motivating reason for the testatrix’ change of attitude should be kept secret from a court striving for essential justice is 'beyond our comprehension. Material facts are not to be withheld and justice is not to close her eyes while the evidence is being offered and received. Careful scrutiny and full material disclosure are then the applicable rule. It is only after the testimony has b’een submitted and is about to be weighed and adjudicated that the legendary blindfold takes its customary place to signify impartiality.

The real question presented by the pleadings is whether the obligation to pay the funeral expenses of the widow rests upon the husband’s estate under the terms of his will. A corollary question, not embraced by the pleadings but essential to a final determination of the issues raised, is whether there exists in this regard a liability imposed by law.

The common law rule, which has not been changed by statute, is that a husband who survives his wife is under a duty to provide a suitable burial for her and is primarily liable for her funeral expenses. Watt v. Atlantic Safe Deposit & Trust Co., 92 N. J. Eq. 224 (E. & A. 1920); Mondock v. Gennrich, 19 N. J. Misc. 499 (Dist. Ct. 1941). This duty is based upon the fundamental concept of decency and humanity. Gould v. Moulahan, 53 N. J. Eq. 341 (Prerog. 1895). The husband’s obligation ends upon his death, however, if he predeceases his wife and the primary liability then devolves upon her estate. In Gould v. Moulahan, supra, the court said:

“But for tlie husband’s survival of his wife, the obligation to bury her and to pay the expense of that burial would rest upon the representative of her estate.”

This is the situation here, as Thomas S. Sancls predeceased his wife by almost eleven years and it is nowhere claimed that his widow, at her death, was not possessed of a sufficient estate to provide a suitable burial. Under these circumstances, no obligation for the wife’s funeral expenses is imposed by law on the estate of the husband.

In the absence of a legally imposed liability, does the husband’s will charge his estate, in the hands of his children, with the obligation to reimburse the plaintiff for the widow’s funeral expenses? The pertinent clause of the will directs that his children “shall provide a home and maintenance for my wife, Emma A. Sands, for and during her natural life, if she shall so long remain my widow.” As held by the trial court, the nature and extent of maintenance to be furnished depend upon the intention of the testator expressed in his will. Endicott v. Endicott, 41 N. J. Eq. 93 (Ch. 1886).

“In construing a will, it will be presumed that the testator understood and intended the provisions thereof. As the courts are careful to discover and enforce testator’s intention, but not to make a new will for testator, it follows that they constantly refuse to ascertain testator’s intention except from the words which he used in his will, together with such extrinsic evidence as is admissible. The question always before the mind of the court is, not what should testator have meant to do or what words did. he mean to use, but what is the reasonable meaning of the words which he has actually used.” 2 Page, Wills (3rd Ed. 1941), § 919, p. 810.

The function of the court is only to construe the will that the testator has made, not to make a new will for him. McGill v. Trust Co. of N. J., 94 N. J. Eq. 657 (Ch. 1923) ; affirmed with modification, 96 N. J. Eq. 331 (E. & A. 1924) . The court’s main concern is not so much what the testator meant to say as it is to determine what he meant by what he did say. N. J. Title Guarantee & Trust Co. v. Dailey, 123 N. J. Eq. 205 (Ch. 1938); Summit Trust Co. v. McAuley Water St. Mission, 125 N. J. Eq. 505 (E. & A. 1939).

In a very recent decision in Burlington County Trust Co. v. Di Castelcicala,, 2 N. J. 214 (1949), Justice Case said:

“Our first duty is to determine tlie intent of the testatrix, an intent to be drawn from the will as written, illuminated by such circumstances as existed at the date of the execution. We are not to guess what the testatrix would have done if she could have foreseen what would happen after her death, or to frame a document which we think would be a fitting last will and testament.”

Only by a tortured construction of plain language and by adding something not expressed therein could a provision by the husband for maintenance “during her natural life” be extended to include expenses which could not possibly arise until after the wife’s death. Such a construction would not 'be reasonable or logical nor in accord with the rules of construction laid down in the authorities cited. Under these circumstances, the phrase “natural life” does not include a period after death nor embrace funeral expenses which might not be determined until many years after his demise. To hold otherwise would not only do violence to the language here used by the testator but would saddle a husband’s estate during all the years of his survivor’s widowhood with a liability which he had not in his will assumed or provided for, unless he by express terms specifically excluded such contingency. This would be true even though the wife’s separate estate was many times larger than his. We cannot judicially speculate as to what the testator might have intended to say in his will. Our obligation is to construe what he did say.

In Wilson v. Staats, 33 N. J. Eq. 524 (Prerog. 1881), one of many questions presented on exceptions to an executor’s final account was whether the executor had authority to provide out of the residue of the estate for the burial of the testator’s sister. The facts are materially at variance with those presently under consideration. The will left the entire residual estate to the testator’s brother and sister for life, the income to be paid to them.yearly for their support, with the provision that “if the interest should prove insufficient for the purpose, then so much of the principal as might be necessary for the purpose, should be applied thereto.” The court, in its decision, stressed the fact that “these two persons, the legatees, were both poor” and pointed out one was a sickly imbecile and that, by the quoted provision of the will, “the testator intended to devote to their support, for life, the entire residuum of his estate, if necessary for the purpose.” The choice would have been between a charge against the deceased brother’s estate and a pauper’s burial and the court, under these circumstances, allowed the executor credit for the charge, stating:

“It is reasonable to hold that under the provision made by the will lor Dove and Jane, neither of whom had any property, expenses of their decent burial, if borne by the executor or trustee, would be allowable credits in his account. He paid the expenses of the burial of Jane. It cannot be doubted that the testator contemplated that the expenses of such burial should, if necessary, be paid out of the residue. It seems to have been necessary for the executor to provide for Jane’s burial, and the amount expended for the purpose appears to have been reasonable.” (Italics added.)

The basis for the decision seems to have been the indigency of the deceased sister. The burial expenses were allowed not so much from a construction of the will as from the duty imposed by law on next-of-kin with adequate means to provide decent burial for persons whose own estate was insufficient for that purpose. Fo comparable circumstances appear or are even suggested in the present case.

The general rule of construction applicable to provisions for support during a beneficiary’s lifetime is stated in In re Richey's Estate, 251 Pa. 324, 96 A. 748 (1916). There, the husband left all his property except for one specific legacy to his wife for her life. She had power to sell the real estate and invest the proceeds and, in the event of such sale, she was to get the interest on the proceeds and so much of the principal as she might find necessary for her comfortable maintenance and support. In the accounting of the husband’s estate, the executor claimed credit for expenditures for the wife’s funeral expenses and gravestone. The credits were disallowed by the appellate court, which stated:

“There were two other items of credit claimed in the account and allowed by the court below, one of $256.65, to cover the funeral expenses of Mrs. Richey, and the other for $95, for a stone to place over her grave. This was error. There is nothing in the will of James M. Richey that justifies an expenditure out of his estate for either of these items.”

Contractual provisions for the lifetime support of one of the parties have been likewise construed not to include burial expenses.

“We are quite content with the finding that the Hoyers were not hound under the contract to pay the funeral expenses of Mrs. Brandes. This was not part of their contract with the deceased. Tliej7 agreed to care for her during life, not to bury her at death. If she had any estate, this estate was subject to claims for her funeral expenses.” In re Brandes’ Estate, 145 Iowa 743, 122 N. W. 954 (1909).

Similar holdings may be found in Skeen v. Parsons, 94 W. Va. 584, 119 S. E. 681 (1923); Morris v. Fain, 165 Ga. 879, 142 S. E. 119 (1928).

Por the reasons recited, we find no obligation under the terms of the husband’s will to pay the wife’s funeral expenses.

The judgment is affirmed.