(247 N. Y. 195)

In re GALLIEN et al.

Court of Appeals of New York. Jan. 10, 1928. 1. Wills 686(2)-Will providing for distribution "when" payments to several persons under trust provision should cease held to require division "as" payments severally ceased.

Will creating trust estate, to pay foster daughter monthly income, and income from balance to be paid to wife and to son if he survived wife, and further providing that "when" such payments should cease by reason of deaths of beneficiaries estate was to be distributed, should be construed to mean distribution "as" such payments cease, requiring division as payments severally cease and deaths severally occur, rendering will valid as against contention that trust suspended power of alienation and absolute ownership for more than two lives in being at testator's death.

2. Wills 446-Of two or more reasonably possible constructions, one sustaining will's validity is generally preferable to one defeating it.

If two or more constructions of will are reasonably possible, one sustaining validity is generally to be preferred to one defeating validity.

3. Wills 460, 462, 463-Court attempting to preserve will's validity may reject, supply, or transpose words and limitations to get correct meaning.

Court struggles to preserve will's validity and surrenders to nothing short of obvious compulsion, and, in attainment of its end, may reject words and limitations, supply them, or transpose them to get at correct meaning.

4. Perpetuities

6(10)-Testamentary trust providing income for testator's foster daughter, remainder of income to testator's wife, and on her death to son, if he survived, held to fail as to gift to foster daughter.

Will creating trust for payment of income of $50 per month to foster daughter of testator, rest of income to be paid to testator's wife and on her death to son if he survived her, fails as to provisions for foster daughter, since under certain conditions trust might suspend power of alienation and absolute ownership for more than two lives in being at testator's death.

5. Wills

473-Difficulty of determining amount necessary to provide income as to which testamentary trust was invalid held not to prevent severance of such fund from trust to uphold will.

Where will created trust estate with chief idea of providing for testator's wife and son and left income of $50 per month from trust estate to his foster daughter, with remainder of income to go to wife and on her death to son if he survived, and, on cessation of payments through beneficiaries' death, distribution

was to be made, such provision for foster daughter was invalid as suspending power of alienation more than two lives in being, but difficulty of determining amount of estate to be set apart

as sufficient to yield such monthly payments does not prevent severance thereof so as to make will valid as to other provisions.

6. Wills 687(4)-Will construed to give trust income to testator's son if he survived testator's wife.

Where will created trust estate chiefly to care for testator's wife and son and provided for payment from income of $50 per month to testator's foster daughter, with rest of income to go to wife and at her death to son if he survived her, further provision that, when above payments should cease by reason of death of beneficiaries, distribution should take place, required division as payments severally ceased, but, on death of wife before son, would not require division of principal of trust estate, since income would then be carried over to surviving son by express mandate of will.

7. Wills 865 (1)—Property subject of invalid testamentary trust provision held distributable on basis of intestacy.

Where will created trust estate chiefly to care for testator's son and wife, and provided that from income foster daughter should receive $50 per month, rest of income to go to wife and on her death to son if he survived wife, provision for foster daughter failed as in certain respects suspending power of alienation and absolute ownership for more than two lives in being at testator's death, and property necessary to provide income specified for her should be distributed on basis of intestacy.

E. Crosby Kindleberger and Arthur O. Townsend, both of New York City, for appellants Addison J. Gallien and others.

N. F. Towner, of Albany, for appellant Wesleyan University.

Arthur L. Andrews, of Albany, for appellant National Commercial Bank and Trust Co.

Newton B. Van Derzee, of Albany, for appellant First Presbyterian Church of Albany.

Melvin T. Bender and Roland Ford, both of Albany, for Ida L. Gallien et al., as executors respondents.

Herman J. Diekman, of Albany, special guardian for Brace G. Gallien, respondent.

will disposing of an estate of the value of CARDOZO, C. J. Brace M. Gallien left a from $150,000 to $200,000. He was survived by his wife and by a son of unsound mind.

The son had been cared for by one Mabel Crans, who is described as a foster daughter, but who was never adopted. She survived the testator only four days. By the will, which was written on a printed form, the whole estate, after payment of debts, is given to a trustee in trust

"from the income thereof to pay monthly to our foster daughter, Mabel Crans, so long as she may live, the sum of fifty dollars ($50) per month for her personal use. The balance of the income of my estate is to be paid to my wife Ida L. Gallien as she may desire it. If my said wife, should be survived by our son Brace Goodwin Gallien, then the said balance of income or so much thereof as may be necessary is to be expended for his proper support and mainte

nance."

disposed of shall be divided. Such a reading has support in the evidences of intention furnished by the will itself as well as in settled principles of testamentary construction. One of the best-known of those principles is that, if two or more constructions are reasonably possible, the one that will sustain the valid ity of the will is to be preferred, generally speaking, to the one that will defeat it. Roe v. Vingut, 117 N. Y. 204, 212, 22 N. E. 933; Phillips v. Davies, 92 N. Y. 199; Greene v. Greene, 125 N. Y. 506, 512, 26 N. E. 739, 21 Am. St. Rep. 743.

[3] The court struggles to preserve, and surrenders to nothing short of obvious compulsion. In the attainment of its end, it may "reject words and limitations, supply them or transpose them, to get at the correct mean

"When the above payments shall cease by reason of the deaths of the beneficiaries mentioned,

I direct my said trustee to pay the following bequests in the order mentioned dividing the residue of my estate into six equal parts."

One-sixth is given to a brother; one-sixth to another brother; one-sixth in trust for a sister; the residue to a church and to Wesleyan University. The surrogate held that the trusts for the wife, the son, and the foster daughter suspend the power of alienation and the absolute ownership for more than two lives in being at the death of the testator, and that the entire will is void. In his view, the whole estate must have been kept within the trust if Mabel Crans had survived the other beneficiaries, though the income to be paid to her would be only $50 a month ($600 a year) out of a yearly income of $10,000 or more. The preservation of an idle trust might be incongruous with reason. Even so, the incongruity was unavoidable in view of the language of the will. The Appellate Division affirmed by a divided court.

[1, 2] "When the above payments shall cease by reason of the deaths of the beneficiaries mentioned," what is undisposed of shall be divided. The question is whether division is to be made when the payments severally cease and the deaths severally occur, or is to be postponed until all the death's shall have occurred and all the payments shall have ceased. We reach the first of these results if we hold that the word "when" at the beginning of the sentence may fairly be interpreted as equivalent to "as." Equivalent they often are. Murray, Oxford Dictionary, s. v. As, subd. III, 16; s. v. When, subd. II, c. The will in that view is to be construed as if it read, "As the above payments shall cease (or shall severally cease) by reason of the deaths of the beneficiaries mentioned," what is un

Phillips, 24 N. Y. 463; Miller v. Gilbert, 144 N. Y. 68, 74, 38 N. E. 979. There are internal evidences of intention here to reinforce these general precepts. The will does not say that division is to be postponed until the entire trust shall terminate. It says that, when there is cessation of "payments," there shall also be division. Certainly some payments will cease upon the death of wife and son. If the trust is to exist thereafter, it will cease to be bounded by the time when the income or any substantial part of it can continue to be paid in accordance with the trust provisions. “We are not to gather, from the language of the will, the absurd and destructive intention to continue a trust beyond the limit implied by its own nature and inherent character, unless compelled to do it by language which will admit of no other interpretation." Crooke v. County of Kings, 97 N. Y. 421, 438. Cf. Locke v. Farmers' Loan & Trust Co., 140 N. Y. 135, 147, 35 N. E. 578. More significant, however, than any argument that has its roots in verbal criticism is the argument that is drawn from a survey of the consequences to be promoted or averted. By reading “as" for "when," or construing the cessation of payments as several or distributive rather than general or collective, we not only save the validity of the trust or at least the greater part of it, we cut an avenue of escape' from consequences so unreasonable, we might even say so ludicrous, that a sensible testator cannot be supposed to have intended or approved them. The wife and the son were the chief objects of solicitude. The care of them was the primary purpose of the trust. The trifling provision for the "foster daughter" was an incident and nothing more. To tie up the whole estate in a continuing trust after the death of wife and son in order to make these petty payments, is a result so extraordinary, even if it were lawful, that only words inexorably clear should drive us to ac

1

cept it. Acceptance will be the more reluctant when one of the consequences accompanying it is to make the will unlawful.

[4] We hold, accordingly, that "when" in the sentence defining the time of distribution is equivalent to "as." If the will were so phrased, it would be the duty of the trustee, upon the death of wife and son with the foster daughter living, to retain within the trust an amount adequate to make provision for the monthly payments of $50, and to make division of the residue. A severance of the trust to that extent would then be an implied command. Matter of Horner's Will, 237 N. Y. 489, 143 N. E. 655; Matter of Trevor's Will, 239 N. Y. 6, 145 N. E. 66; Locke v. Farmers' Loan & Trust Co., 140 N. Y. 135, 149, 35 N. E. 578; Hopkins v. Kent, 145 N. Y 363, 40 N. E. 4. A like duty exists under the will as it is written. We do not say that such a severance will save the trust in its entirety. It must fail even then as to the share directed to be retained for the use of Mabel Crans, since there are possible contingencies in which three lives might have to elapse before the trust as to that share would end. If the foster daughter were to die before the wife, the income thus released would become an accretion to the income payable to the wife, and, in the event of her death, might be added to the income of the son. This would transgress the statutory limit. On the other hand, the trust for wife and son must terminate in any event at the end of two lives, since their shares are to be severed and distributed in fee if the daughter shall survive them.

[5] We see no difficulty in determining the proportion of the estate to be set apart as sufficient to yield the monthly payments. Bradhurst v. Field, 135 N. Y. 564, 32 N. E. 113. A different question would be here if the testator could be supposed to have intended that the payments should have the security of a trust enveloping the whole estate regardless of its size. Such was the situation; e. g., in Cochrane v. Schell, 140 N. Y. 516, 535, 35 N. E. 971. Here the direction to divide the principal when payments to the beneficiaries shall cease is equivalent to a direction to make I whatever severance is necessary. Nor is there substantial ground for the belief that the failure of the trust for Mabel Crans will so mutilate the will in the essence of its plan as to make it better to drag down to destruction at the same time the trust for wife and son. Mabel Crans would not take anything if the will were rejected altogether. She was not an heir or next of kin. We have no such problem here as arises at times where the failure of a separable trust will involve an unintended discrimination between children or other relatives who would take equally or proportionately if there were to be intestate

succession. Benedict v. Webb, 98 N. Y. 460, 466. Nothing is done here save what we may safely presume that the testator would have wished the court to do in the presence of such an emergency if he had been able to foresee its happening. Kennedy v. Hoy, 105 N. Y. 134, 11 N. E. 390.

[6] We are told that the will, if read as directing a division when payments severally cease, would fail even then to express the wish of the testator. The argument is made that immediate division of the principal would be necessary in that event if the wife died before the son. No such result would follow. The income would then be carried over to the survivor by the express mandate of the will. Not till the death of the survivor would the time arrive when the payments to the beneficiaries as directed by the testator could be said to have ceased as to any portion of the trust estate. Subtle refinements are unnecessary to give support to that construction. What is needed is nothing more unusual than a common sense appraisal of probabilities and meanings.

[7] We hold that the trust for the foster daughter fails, that as to the capital reasonably necessary to produce the income payable to her, distribution is to be made upon the basis of intestacy, and that the trust is valid as to the residue.

Questions may arise hereafter in respect of the validity of some or all of the gifts to take effect as remainders when the trust is at an end. None of these questions was considered by the courts below. We leave them open now, to be dealt with hereafter by the surrogate or the Supreme Court, if it shall be found expedient to answer them. Matter of Farmers' Loan & Trust Co., 226 N. Y. 691, 124 N. E. 1.

The order of the Appellate Division should be reversed, and the proceeding remitted to the Surrogate's Court for the entry of a decree construing the will in accordance with this opinion, costs to be allowed to all parties appearing and filing briefs in this court, payable out of the estate.

LEHMAN, J. (concurring in part). There can be no question that the primary purpose of the testator in creating a trust of all his property was to make provision for his wife and son. A small fractional part of the income was to be paid to his foster daughter, Mabel Crans, so long as she lived. The balance was to be paid to the wife or son. The death of Mabel Crans would increase the income payable to them. Their death was not to affect payment to her. When the testator's wife and son both die, the primary purpose of the trust fund will be complete. The question presented upon this appeal is wheth

er the testator evidenced an intent that the trust fund or any part of it was to continue after the primary purpose of its creation had ceased. The testator's desire to safeguard the payment of the sum of $50 a month to Miss Crans must have been strong indeed, if he intended that after the death of his wife and son property with an income of $10,000 should be held in trust to effectuate that desire. If the testator had intended such result, we might look with confidence for some direction for the disposition of the large surplus of income remaining after the small payments to Miss Crans were made. Here such direction is wanting.

The testator's intent must be gathered from the language of his will. Strict grammatical construction may at times defeat actual intent. We must give effect to the sense which a testator attached to the words he has used. Here the testator has provided that the trust shall terminate "when the above payments shall cease by reason of the death of the above-mentioned beneficiaries." If by the words I have italicised the testator indicated that the trust fund was to be held intact until Miss Crans died, though his wife and son may have died before, his indicated intention may not be disregarded. Cochrane v. Schell, 140 N. Y. 516, 35 N. E. 971. In that event the testator has acted foolishly. He has created a trust which is void in law and which, even if valid, would result in tying up his whole estate after the death of his wife and son

for the sole purpose of safeguarding payment of a small proportion of the income to his foster daughter.

By the terms of the will, after the death of Miss Crans all the income became payable to the testator's wife and son. Only in the

event that both died before Miss Crans could the trust, under any possible construction of the will, continue after the payment of the balance of the income to the wife and son ceased. We may assume with a reasonable basis for the assumption that the testator did not realize that a contingency might arise in which the property would be held merely to safeguard payment of $600 a year to Miss Crans. Otherwise he would have made some provision for the disposition of the balance of income, amounting to $9,400. Here we have at least a clue to the actual intention of the testator in using the words "above payments" and "above-mentioned beneficiaries."

After payment of $50 to Miss Crans, so long as she shall live, payment of the balance was to be made to the wife. If the testator's son survived the wife, the balance of income was to be expended for him. Payment of the balance of the income to the beneficiaries entitled thereto was the dominant purpose of the trusts. Payments to wife and son are

directed, and the beneficiaries are mentioned in the two sentences immediately preceding the direction for the termination of the trust, "when the above payments shall cease by the death of the beneficiaries mentioned." To me it seems clear that the testator, in using these words, had in mind only the payments last directed to the last-mentioned beneficiaries. Under that construction, payments to Miss Crans would still be continued with adequate safeguards. Buchanan v. Little, 154 N. Y. 147, 47 N. E. 970. Other construction requires that we impute to the testator ignorance of the law and lack of ordinary foresight.

The order of Appellate Division should be reversed.

KELLOGG, J. (dissenting). In order to give effect to an intention of the testator, not expressed but assumed to exist, the court proposes to reword one sentence of the will to read as follows:

"As the above payments shall cease (or shall severally cease) by reason of the death of the beneficiaries mentioned, I direct my said trustee to pay the following bequests in the order mentioned, dividing the residue of my estate into six equal parts."

Further reduced, but with the same meaning, the sentence would read:

"As the above payments shall severally cease by reason of the death of the beneficiaries mentioned, I direct my trustee to pay the following bequests."

That would mean that, at the death of the foster daughter, the principal sum, furnishing to her a life income, must then be distributed to remaindermen. It would further mean that, at the death of the wife, the principal sum, furnishing to her a life income, must then be similarly distributed. But this verbal weapon would overshoot the desired mark. It would leave in the trust no sum from which there might be paid an income to the son, as provided elsewhere in the will. Even the authors of the improved sentence would not approve that result. What they seek is a severance of the capital sum into two parts-one to be devoted to the uses of the foster daughter, the other to be devoted to the uses of both the wife and son. With this end accomplished, neither fund would remain in a state of trust for more than two lives. But how can this be achieved by the phrase, “as the above payments shall severally cease"? If that means aught, it means "as the payments to each of the several persons named shall cease" there shall be division of the principal pro tanto. The revised sentence provides no line of cleavage between the daughter's fund on the one hand, and upon

the other the fund providing income for the wife and son. The truth is that the will ordains division at the end of the three lives and not sooner. When the payments to the beneficiaries shall cease by reason of "their deaths" that is, the deaths of the three then and then only is the trustee directed "to pay the following bequests in the order mentioned, dividing the residue of my estate into six equal parts." In my judgment the testator attempted to create a trust to endure for a period longer than two lives and therefore the will should not stand. I therefore dissent.

POUND, CRANE, ANDREWS, and O'BRIEN, JJ., concur with CARDOZO, C. J. LEHMAN, J., votes for reversal in separate opinion.

KELLOGG, J., dissents in opinion and votes to affirm.

Ordered accordingly.

(247 N. Y. 207)

COHEN v. NEUSTADTER (two cases). Court of Appeals of New York. Jan. 10, 1928. 1. Master and servant 301 (1)—Statute held to make owner liable for negligence of driv. er operating motor vehicle for own purposes with owner's assent (Highway Law, § 282-e).

Highway Law (Consol. Laws, c. 25), § 282-e, making motor vehicle owner liable for its negligent operation by any person using it with express or implied permission of owner, makes

owner of vehicle liable for negligence of a driver who operated it for his own purposes with the assent of the owner.

2. Master and servant 301 (1)-Automobile owner held liable under statute for injury to

passenger by negligence of daughter driving with owner's consent (Highway Law, 8 282-e).

Highway Law (Consol. Laws, c. 25), § 282-e, making motor vehicle owner liable for its negligent operation by any person using it with express or implied permission of owner, held applicable, where guest was injured through negligent driving of car by daughter of owner who had assented to daughter's using car. Lehman, J., dissenting.

ment in each case reversed, and new trial granted.

William A. Schacht, of New York City, for appellants.

James A. Nooney and Joseph Force Crater, both of New York City, for respondent.

KELLOGG, J. These are two actions in negligence which were tried as one. The first action was brought to recover damages for personal injuries sustained by the plaintiff Fanny Cohen. The second action was brought by her husband, Samuel Cohen, to recover damages for the loss of the services of Fanny Cohen, occasioned by her injuries. The two Cohens were spending their vacation in the Catskills at a boarding house near Mountaindale. The defendant, an acquaintance of theirs, was spending his vacation in the nearby village of Fallsburg. One day the three met at a country store in Mountaindale. According to the story told by the Cohens, the defendant asked them to drive with him in his automobile to Fallsburg. Fanny Cohen said that she would like first to change her dress. Thereupon the defendant directed his daughter, Pearl Neustadter, to drive the Cohens in his automobile to their boarding house in order that Fanny Cohen might effect a change of clothes. According to the Neustadters, the Cohens asked the defendant to drive them in his automobile to Fallsburg. When the defendant had given his assent, Fanny Cohen remarked that she must return to her boarding house for the purpose already stated. Thereupon the defendant's daughter, Pearl, in the presence of the defendant, invited Fanny Cohen to drive to the boarding house. No direction was given by the defendant to his daughter to make the drive. Concededly, the drive was taken. Concededly, the automobile, on its way back from the

boarding house, was overturned at the foot

of a steep hill while Pearl Neustadter was attempting to guide it around a turn into a crossroad. Concededly, the plaintiff Fanny Cohen was more or less seriously injured by the capsizing of the car. Abundant proof was given to justify the conclusion that the car was negligently driven by Pearl Neustadter. Nevertheless, the jury, by its verdicts, acquitted the defendant from liability. It had been instructed by the trial court that

Actions by Fanny Cohen and by Samuel Cohen against Pesach Neustadter. From judgments of the Appellate Division, First Judicial Department (221 App. Div. 102, 222 N. Y. S. 602), affirming judgments of the Trial Term, entered on a verdict of jury in favor of defendant, plaintiffs appeal. Judg

must first find that the defendant had directed his daughter to drive the Cohens to the boarding house and return. The court had also ruled that it was not sufficient if the daughter made the trip with the express or implied consent of the defendant. In view of the instructions given, and the compelling nature of the proof as to negligence, it is