Opinion
November 2, 1917.
John N. Blair, for the plaintiffs.
Frank H. Twyeffort, for the defendants Irwin and another, as surviving executors.
Charles I. Wood, for the defendant Catharine W. Angus.
Charles A. Capron, for the defendant Farmers' Loan and Trust Company, as trustee.
Apparently the testator looked for a different sequence of events. He did not anticipate the possibility that the earlier trust would continue to apply to Catharine after her remarriage. By the widow's long survivorship, Catharine has enjoyed an income in the estate for nine years after becoming Mrs. Angus.
So long as Catharine remained the son's widow, she was to be treated with great liberality. She had an immediate legacy outright of $15,000, the same as the daughters. The first trust looked to the family as united by the mother. While she lived, her influence held them together, so that no separation was planned. After the break-up inevitable on her death, the corpus is cut into four parts. To Catharine the share goes in trust, to receive the income while she as a widow bears the Duryea name. When she should take up a new connection by remarriage, and was no longer under the old family ties, she was to have outright $20,000, leaving the residue to remain with the three daughters by adoption, of the testator.
The term "until" in the phrase "until she re-marry" is one of limitation, equivalent to the words "upon" or "up to" or "in the event of." It looks to remarriage as terminating the use or income, because breaking up the family dependence. It is the end of the annual payments, not the beginning of them. It shows a purpose, very natural and commendable, that this "intermediate maintenance" shall stop as fulfilled when that legal duty of support shall fall on a husband by such remarriage.
It is, however, urged that such a purpose to withdraw the use and income will not be inferred, even with such plain words, where it appears that the future husband had the testator's approval, having been known to him in his lifetime. But the testator might well approve of the choice of the man, and still intend that the disposition over to the daughters should take effect. ( Bullock v. Bennett, 24 L.J. [N.S.] Ch. 512.)
On the widow's death, when this new trust was to begin, the testator's limitation was not defeated by the fact that the contemplated remarriage had already occurred before the division of the estate under the 5th paragraph of the will. Remarriage was a prescribed condition on which the estate was then to turn. Catharine having already remarried, the fourth which she would otherwise take passes under the will to the three daughters named. ( McLean v. Freeman, 70 N.Y. 81, 85; Matter of Miller, 161 id. 71.) She, however, urges that this amounts to a general restraint of marriage, which avoids the condition, and refers to the cases applying the civil law doctrine as to restraints of marriage. ( Scott v. Tyler, 2 Dick. 712; 2 White Tudor L.C. 144.)
Here the trusts under paragraphs 4 and 5 are entirely distinct. When the provisions under the former terminated wholly on the death of the testator's widow, Catharine is found to have remarried. In the words of GRAY, J., she had then obtained "that protection and the additional means for support, which marriage is usually presumed to bring." ( Robinson v. Martin, 200 N.Y. 159, 163.)
In Scott v. Tyler (2 Dick. 712, 722) Lord THURLOW said: "Nay, according to Godolphin, the use of a thing may be given during celibacy; for the purpose of intermediate maintenance, will not be interpreted maliciously to a charge of restraining marriage." (See, also, 2 Jarman Wills, *886 [Ed. 1893], Bigelow's note.)
In Jones v. Jones (1 Q.B. Div. 279) the testator left all his estate to three women relatives during their lifetime, providing that the niece "shall remain in her present state of single woman, otherwise, if she shall alter her present state of single woman, and bind herself in wedlock, she is liable to lose her share of the said property immediately, and her share to be possessed and enjoyed by the other-mentioned parties, share and share alike." BLACKBURN, J., said: "looking at the object of this will, and the fact that the testator probably thought that his property was not more than enough for these women to live upon together, his direction that the one who married should lose her share, cannot be said to be opposed to public policy." Authorities uphold a limitation designating marriage as the extent of the bequest, which the courts distinguish from a condition in restraint of marriage. The subject is now much simplified. Judge Redfield's addition to Story's text in 1861, which declared such conditions regarding marriage "involved in great uncertainty and confusion" (1 Story Eq. Juris. [8th ed.] § 291e), is no longer accurate.
In the case at bar, without discouraging remarriage or attempting something in terrorem, there is an outright gift of $20,000 as a final and generous bequest to a beneficiary then assuming a new and distant family connection. Instead of promoting celibacy, such a sum in hand under absolute control might, as a marriage portion, become an incentive to remarriage. Alternative legacies on remarriage, balanced against prior provisions for support until remarriage, are not to be viewed as a restraint of marriage. ( Hotz's Estate, 38 Penn. St. 422; Holbrook's Estate, 213 id. 93; Ruggles v. Jewett, 213 Mass. 167; Mann v. Jackson, 84 Maine, 400; Maddox v. Yoe, 121 Md. 288.)
The defendant's claim arose from her widowhood. When she changed her state, and accepted the name and support of a second husband, she no longer has a locus standi under this trust.
Therefore, by the death on October 2, 1916, of Mrs. Frances Duryea, and the end and fulfillment of the trust to the surviving executors, the fourth part of the estate (after payment of the $20,000 to Mrs. Angus) passed to the plaintiffs.
It might be urged that the testator's object could be met by directing the surviving executors to account to and pay over this fund directly to the plaintiffs, and so save the intervention of the Farmers' Loan and Trust Company, as trustee. But the 5th paragraph expressly directs the surviving executors to pay the two remaining fourths to this trust company, which inter alia is to pay Mrs. Angus the $20,000 which the trust company has already tendered to her. The executors in any event have to account to the trust company in respect to Lillian's share. Compliance with this express disposition of the will is, therefore, safer, and carries out the testamentary purpose. Hence the provision to pay to the trust company should take effect. In turn, the trust company is to account to, and pay over, the residue of this quarter interest to the three plaintiffs.
I, therefore, advise: Judgment for the plaintiffs upon this submission, with costs out of the estate to all four parties appearing.
JENKS, P.J., STAPLETON, RICH and BLACKMAR, JJ., concurred.
Judgment for plaintiffs upon submission of controversy, with costs out of the estate to all four parties appearing.