Opinion
03-06-1897
CONOVER v. FISHER et al.
G. Putnam Smith, for complainant. John S. Voorhees, for defendants.
Bill by Louisa May Conover, an infant, by her next friend, against Joseph Fisher, executor of Garret S. Conover, deceased, and another. Heard on bill, answers, and replication. Bill dismissed on conditions.
G. Putnam Smith, for complainant.
John S. Voorhees, for defendants.
EMERY, V. C. This is a bill filed by Louisa May Conover, an infant, by her next friend, against Joseph Fisher, the executor of complainant's grandfather, Garret Conover, and against her grandmother, Ann Louise Conover. The object of the bill, as set out in the prayer for specific relief, is to compel the defendant Ann Louise Conover, the testator's widow, to pay hereafter to the complainant, or to her mother or general guardian for her, a fixed share (3/28) of the income of the entire residuary estate of the testator, and also to account for and pay to the complainant's mother or general guardian the same proportionate share of the income since a day named in the bill, March 13, 1890. Complainant's claim to this payment of a portion of the income is based upon the following provisions of the will of Garret Conover, which are set out in the bill: Fifth. "All the rest, residue, and remainder of my estate, real and personal, wheresoever and whatever the same may be, that I may own at the time of my death, I hereby give, devise, and bequeath unto my executors, in trust that they may convert such of it into money as may not then, in their judgment, be safely and profitably invested, and investthe same in good, profitable, and substantial securities, and devote and apply the same to the uses and purposes hereinafter mentioned, as follows: They shall pay over to my wife, Ann Louise, the entire interest and income thereof during her natural life, as fast as the same may be realized; and, from said interest and income, I direct and authorize her, my said wife, to maintain, support, and educate my granddaughter, Louisa May Conover, daughter of my deceased son, William, until she arrives to the age of twenty-one years, providing my said wife should survive to that time; if not, then my said granddaughter shall have the interest and income paid to her by my executors from such portions of my estate as hereinafter directed." Fourteenth. "To my granddaughter, Louisa May, daughter of my deceased son, William, I order and direct my executors to pay, after the decease of my said wife, and not until then, the interest and income arising from three of such shares and parts, being 3/28 of the entire interest and income of my estate, for her maintenance and support, on and after reaching the age of twenty-one years, until she arrives to the age of thirty years; then to pay to her the principal sum of such share upon which I have directed the interest and income herein to be paid to her from. Should my wife die before my said granddaughter Louisa May arrives at the age of twenty-one years, then I direct my executors to pay the said interest and income of the said three twenty-eighths share of my estate to the legal guardian of said granddaughter, from the date of the death of my said wife until said granddaughter arrives to the age of twenty-one years, at which time she is to be paid said interest and income by my executors until she attains the age of thirty years, and then to pay her the principal sum of the said three twenty-eighths share upon which I have directed the interest and income herein to be paid to her from. In the event of the death of the said granddaughter, Louisa May, before arriving to the age of thirty years without leaving lawful living issue, I order and direct the share so held by my executors to revert to my estate, and disposed of as hereinafter directed." The testator died June 9, 1889; the will was admitted to probate July 25, 1890; and since August, 1892, the executor has paid to the widow the income of the residuary estate, which, according to the account annexed to the answer, is from $1,200 to $1,500 a year. The widow also occupies the homestead, and has the use of the furniture, under the provisions of the fifth clause, as stated in the bill. The charge of the bill is (paragraph 7) that the widow ever since March 13, 1890, has neglected and refused to carry out the trust, and to maintain, support, and educate complainant, and, though often requested, has refused to pay any money to complainant, or to any person or persons, for her maintenance, support, or education; and the defendant executor is charged with knowledge of this refusal of the widow to carry out the trust. It is also alleged in the bill that complainant, who is 14 years of age, resides with her mother, who is an invalid, and is without means of supporting either complainant or herself.
The answer of the defendant Mrs. Conover was required to be under oath, and discloses the following facts: The complainant is the daughter of William Conover, a deceased son of the testator, who was married to complainant's mother on May 4, 1881, and from that time until his death, in December, 1881, resided with testator's family, at testator's home, in New Brunswick. After William's death, his widow was dependent on testator and his wife for her support, until the birth of complainant, May 7, 1882. When complainant was six weeks old, her mother abandoned her to the care of her grandmother, saying to her that she could have the child as her own; and the complainant remained as a member of defendant's family from the time of her birth until she was about eight years old. During this time complainant was entirely supported by her grandfather and grandmother, her mother doing nothing for her support, and rarely visiting her child. Complainant was treated by her grandmother and grandfather as a child of their own, and, while so living with them in the homestead and as a member of the family, the testator made his will, dated June 3, 1886. The same condition of things continued until June 9, 1889, the date of testator's death, up to which time the maintenance and support of complainant had been provided for by her living with her grandparents at the homestead, and being there maintained and supported; and, after her grandfather's death, she continued to be so supported and maintained by the grandmother at the house of the latter, until about May 13, 1890. At this time, according to the answer, complainant's mother obtained from the grandmother permission to take the child to New York, upon the promise to return her on the following day. The child was never returned, and from that time the grandmother has never seen her, nor has she been able to find her. She wrote letters to the complainant's mother, addressed to different cities, where she heard that she was living, offering in these letters to care for the complainant if she would return, but no answers were received; and until the filing of this bill, in June, 1896, the defendant Mrs. Conover has not heard from either complainant or her mother. Mrs. Conover denies any neglect or refusal to maintain her granddaughter, and offers by her answer to receive her into her family, support, maintain, and educate her there as a daughter. She does not, however, offer to pay over to complainant, or any one for her, any portion of the income for complainant's support Neither complainant's present residencenor that of her mother is disclosed in the bill, nor does any guardian for complainant appear to have been appointed by the court. In considering the present application of the infant, it must therefore be taken for granted that the complainant and her mother are nonresidents, and that she has no general guardian.
The claim on behalf of the infant is that, by the provisions of this will, a trust is created in her favor, out of the interest and income, for her maintenance, a portion of which income in money she is absolutely entitled to have paid over to some one for her, as her absolute right; and it is further claimed that this share should be at least 3/28 of the net income, that being the share or proportion of the principal which testator has directed shall ultimately go to her benefit. I agree with complainant's counsel that the language "from said interest and income I direct and authorize my wife to maintain, support, and educate my granddaughter" creates a trust in complainant's favor, and makes the testator's wife a subtrustee for complainant; and I also think that if the testator's wife, after receiving the income from the executor, repudiates the trust, or refuses proper support or maintenance, a court of equity can afford relief, both against her and the executor, who paid over the funds to the widow, knowing that she intended to repudiate the trust. So far complainant's claim seems to be settled by the cases cited by her counsel: Eberhardt v. Perolin, 48 N. J. Eq. 592, 23 Atl. 501, cases cited page 596, 48 N. J. Eq., and page 503, 23 Atl.; Collister v. Fassitt (Sup.; 1896) 39 N. Y. Supp. 800; and also by the authorities I find on my own investigation: 1 Jarm. Wills (Rand. & T. Ed.) pp. 696, 701; 2 Perry, Trusts (3d Ed.) § 620, etc.; McKnight's Ex'rs v. Walsh, 24 N. J. Eq. 498, cases cited page 504; Leach v. Leach, 13 Sim. 304; Chase v. Chase, 2 Allen, 101. See, also, Theob. Wills (4th Ed.) p. 401, etc., upon the general subject of gifts subject to trusts of this character. But in this case the widow does not repudiate the trust, and, on the contrary, offers to perform it in a certain manner; and the real question is as to the character of the trust, and what will be a sufficient performance of it, or offer to perform it, by the widow. The trust as declared is one for maintenance and support, and it is a trust for such maintenance and support by the widow out of the whole income given to her alone. The trust is not expressly made for the payment of money by the widow either directly to complainant or to any one else for complainant's support, in which case it might be fairly urged that it could be satisfied only by such payment. The allowance of complainant's present claim for money to be paid to her or some one for her, to be used for her support, is therefore not disposed of merely by the decision that there is a trust for her support, but depends upon the further decision that the trust for support must be carried out solely by the payment of money to her or to some one for her support.
The question involved, as I look at the case, relates therefore, not to the existence, but to the execution, of the trust, and the control of the court of chancery over the execution of the trust here created for the support of the infant. The ultimate object of the trust is the infant's maintenance, and if the will of the testator, construed according to its terms, and in the light of the circumstances under which it was made, and which continued till his death, indicates that a maintenance and support of the complainant by the grandmother, as one of her family, was or would be a maintenance or support, such as would satisfy his intention and trust for support, then I think a court of equity has no right, merely on the option of complainant or her mother or next friend, to require maintenance by payment of money to them as the sole method of executing the trust. This would give complainant the same benefit as if an express trust for the payment of money had been given, and the testator has given no indication that he intended complainant or her guardian to have the money directly during his widow's life. Testator's will, on the contrary, indicates that, during his wife's life, payments for the complainant's support are to be directly made by his wife, and not to any one else for the purpose. Such payments to another would necessitate a second subtrustee of the fund, as guardian of the infant, before the disbursements for the infant's support were finally made; and direct payments to the granddaughter or her guardian of the income are expressly withheld, by the fourteenth clause of the will, until after the death of the testator's wife. "After the decease of my wife, and not until then," is the language of testator as to such payments; and this express direction, taken in connection with the situation at the time, seems to exclude the idea that the support of complainant by the widow was to be made only by payment to some one else for that purpose. The fact that the only support which complainant had received during her whole life, and up to the time of testator's death, was a maintenance and support in testator's family, and as a member of it, is sufficient of itself, it seems to me, to make a continuance of the same kind of support prima facie a reasonable and proper execution of the trust in favor of the infant. And if this same support is still offered in good faith, and there are no facts showing that, by reason of change in the infant's situation or other causes, this kind of support, considering all the circumstances, is no longer a reasonable and proper one for the infant, then I cannot, as it seems to me, declare that the testator's widow has so violated the trust reposed in her by the testator to maintain,support, and educate his granddaughter from the income of his estate as to justify me in now ordering payment to complainant simply on the claims of her present bill.
Defendants' counsel claims that, in view of the complainant's residence in testator's family at the time of his death, the will should be construed as requiring complainant to remain in his family as a condition of support, and that no support of any other kind can be required. But to hold that support should be made only in this way would add words to the will by construction, and my view as to the effect of the surrounding circumstances upon this will is that they have only the effect of showing that the maintenance and support, as they were then made, were, within testator's intention and desire, one proper method of performing the trust. But this cannot be held to be the only method, and a change in the situation or circumstances of the child might make this method an improper one, and one which, in the interest of the infant, a court of equity would not enforce. Prima facie, however, and in the absence of any circumstances in the case showing that the offer of testator's widow to continue the support of complainant in her family is not made in good faith, or is unreasonable or against the real interests of the infant, or that the failure to support in this way is due to the defendant, I cannot hold that she has been guilty of any violation of her trust. The application to pay over either to the complainant or any one for her any specific portion of the income is therefore refused, but this is without prejudice to an application based on an inquiry into the reasonableness and propriety of the support of complainant in her grandmother's family. If complainant desires, I will consider whether such inquiry should be made under amendments to the present bill or by directions to a master.
I dispose of the infant's present application upon the basis that the facts disclosed by the answer in reference to the circumstances of the defendant's failure to support complainant are true. The answer was called for under oath, and these facts seem responsive to the charge made in the bill, that the widow has neglected and refused to carry out the trust, and that the executor defendant, knowing of this refusal and neglect, continues to pay over the income, without taking steps to secure its performance. Replication was filed to the answer, and the case set down for hearing on bill, answer, and replication without further proofs. The facts set out in the answer were treated on the argument as if proved by sufficient evidence, and the argument proceeded on that basis, complainant's counsel claiming that, if true, they were no answer to the bill. My present view is that these facts set up in the answer are responsive, and therefore to be taken as true, for present purposes; but if they are not responsive, and require proof, and complainant's counsel desire to raise this question, then the proper course on this application will be also to direct an inquiry into the truth of these allegations.
The jurisdiction in the present case, being, as I view it, based on the right of this court to require the trust for the support of an infant ward of the court to be properly carried out, the final decree in the cause will not be controlled merely by the pleadings of the parties. It will be the duty of the court, in the best interest of the infant, to direct an inquiry into the truth of the matters alleged in the answer, if they are not admitted to be true; and it is not to be precluded from this inquiry by the fact that the parties choose to proceed to argument of the cause without proving them, and as if they were true. If complainant, however, does not ask further inquiries of any kind, and desires to rest the complainant's application on her absolute right to require payment of money directly to complainant, her mother or guardian, without regard to the facts set up in the answer, the bill will be dismissed.