#### Josephine Louise Newcomb, as Sole Surviving Trustee, under the Will of Warren Newcomb, Deceased, Plaintiff, *v.*Josephine Louise Newcomb, Individually, et al., Defendants.

(Supreme Court, New York Special Term,

November, 1900.)

1. Trust in personalty for widow’s life income — Disposition of remainder under a clause that, “ after providing for ” all previous bequests, she should take “ all the residue.”

A will of personalty, made in 1866 when gold was above par, directed, by its first paragraph, that the testator’s widow should have an annual income for fife of $10,000 in gold, sufficient of the estate to be “ set aside ” and invested so as to produce that income. It thereafter created a trust for his only daughter and next of kin, which was to go over to the widow if the daughter died without issue, and lastly directed that, “ after providing for all the previously named bequests,” the widow should take “ all the residue ” of the estate. The daughter died, intestate and unmarried, after her father and before her mother, who brought an action to construe the will.

Held, that the title to the fund created by the-first paragraph remained undisposed of, that under the residuary clause the widow was entitled to the remainder therein, and that the testator did not die intestate as to such remainder.

That the words “ after providing for,” etc., were words of description and not of exclusion.

2. Same — Bight of beneficiary to end the trust upon becoming entitled to the remainder.

The statutes (L. 1893, eh. 452; 1896, chs. 547 and 553; 1897, ch. 417, § 3), permitting a life beneficiary of the income of a trust in personalty, upon becoming entitled to the remainder in the *corpus*to release her interest in the income and end the estate of the trustee by merging the trust estate in the remainder, confer no absolute right upon the beneficiary of such a trust, created before those statutes were passed, to terminate the same and obtain possession of the corpus.

Action for the construction of a will and for an accounting.

Lord, Day & Lord, for plaintiff.

*192Swayne & Swayne (Henry T. Eay, of counsel), for defendants H. Victor Newcomb and others.

Wilmer & Canfield (James McConnell, George F., Canfield, of counsel), for defendant Josephine Louise Newcomb.

Andrew McKinley, for defendant H. Dalton Newcomb.

Robert A. Paddock, for defendant Frank E. Carpenter.

Leventritt, J.

Action for the construction of a will and for an accounting. The primary question involved in this litigation is the ownership of a certain remainder, the contest being between the widow of the testator and his heirs-at-law.

Warren Newcomb, the testator, died on the 28th day of August, 1866, leaving a last will and testament, consisting of three paragraphs, as follows:

*“ First.*I give and bequeath to my beloved wife Josephine Louisa Newcomb an annual income of ten thousand (10000) dollars pr. annum in Gold or its equivalent sufficient of my estate to be set aside and invested in good securities the income of which will net ten thousand dollars gold pr. annum.

*“ Second.*After providing for the above I devise to Junius B. Alexander Solon Hamphiner both of the Oity of New York and. Henry Morgan of Whitestone Queens Oounty New York two hundred thousand dollars in gold or its equivalent in trust to hold said, money for the sole and separate use of my daughter Harriet Sophie Newcomb (free from the control or use of any husband she may have) for her life time the money to be loaned or invested in such securities as the trustees may deem most advantageous to the trust the investment to be changed at any time the trustees may deem it best see page no 2 so as to make as near a certain income as possible after paying taxes and other necessary expenses the balance of the actual income to he applied to a liberal support and education of my daughter during her minority the surplus to accumulate when she arrives at the age of twenty one years the accumulation of interests after all her -expenses to he made over to her if my daughter should die without issue this devise or trust is to revert to my wife Josephine Lo-uisa Newcomb absolutely hut if she should die leaving issue then the trust is to continue for the *193benefit of such issue until all of such issue arrive at the age of twenty one years then the said sum of two hundred thousand dollars or the securities in which it may be invested, shall be divided between them (pr. stirpes) should any one of said trustees decline to serve or die the remaining two shall elect a third who shall have the same power to act as those previously named my first and principal object in making this devise is to secure to my daughter a certain support or as near so as possible and to tie up this two hundred thousand dollars so that no one can take it from her and that the principal will not be subject to her debts if she should malee any.

“ *Third.*I do give and devise to my dear wife Josephine Louisa Newcomb all my carriages horses harness, also all my and her silver ware jewelry of all kinds including diamonds and watches absolutely after providing for all the previously named bequests I give and devise to my dear wife Josephine Louisa New-comb all the residue of my estate absolutely, in the event of the death of my wife Josephine Louisa Newcomb before my daughter Harriet Sophie then the amount set aside in article No. 1 to provide for my wifes annual income and all the residue of my estate shall revert absolutely to my daughter Harriott Sophie Newcomb upon her arriving at the age of twenty one years in the intervening time to be invested by my executors and administrators until she arrives at that age I hereby appoint my dear wife Josephine Louisa Newcomb, Adolf Bodewald of New York, George D. Morgan of Irvington as my executors and administrators with a request that they will conform to my wife’s wishes as far as practical they to receive a proper compensation for their services.”

This will was duly admitted to probate on the 17th day of September, 1866.

The daughter Harriet Sophie Newcomb, the only child of the testator, died intestate and unmarried on the 16th day of December, 1870. Under the will the trust provided for in paragraph two reverted to the widow, Josephine Louise Newcomb. No question is raised concerning that fund. The present action is brought by the widow, as sole surviving trustee, under paragraph one of the will, against herself individually, and the heirs-at-law of Warren Newcomb, as defendants, praying for a settlement of the accounts as trustee, and for a construction of the first paragraph of the will, so far as it relates to the remainder in the fund set *194aside to produce the annual income of $10,000 in gold. The widow has answered, in her individual capacity, and, claiming title to the disputed remainder, has executed a release for the purpose of terminating the trust and obtaining absolute possession of the fund. Laws of 1893, chap. 452; Laws of 1896, chaps. 547, 553; Laws of 1897, chap. 417, § 3. Her codefendants, the heirs-at-law, dispute her title to the remainder, and also dispute the right in any event to terminate the trust at this time.

To consider first the question of the remainder. Did it pass to the widow, under the residuary clause in the will, or did that fail to dispose of it, thus creating an intestacy as to so much of Warren Newcomb’s property?

The testator devises and bequeathes to his dear wife Josephine Louise Newcomb all the residue of his estate absolutely “ after providing for all the previously named bequests.” Are the words “ after providing ” words of limitation or exclusion, or simply words of description? In the former aspect the residuary bequest would only be partial; in the latter, general. It is conceded that it requires a general residuary bequest to place the title to the fund in the widow. The residuary clause, however, acquires its true meaning only in the light of the fundamental canon of construction — the intention of the testator as disclosed by the whole will. In seeking that it is well to bear in mind that a broad construction is to be preferred to a narrow one (Lamb v. Lamb, 131 N. Y. 227), and that in the face of a will, attempting to dispose of all the testator’s property, all presumptions are against even a partial intestacy. Hoppock v. Tucker, 59 N. Y. 203; Meeks v. Meeks, 161 id. 66. If the evinced intention, however inadequately expressed, is not in conflict with recognized rules of law or with some statute, the court, placing itself in the position of the testator, will, when his lips are sealed, read into his solemn declaration sufficient to effectuate his obvious intention.

It is apparent that the will was not drawn by a skilled draughtsman, and yet by one more or less conversant with technical legal verbiage. To my mind, it requires but a cursory examination of the instrument to discover what is borne out, as well by the closest analysis, that the one dominant intent is to leave' all the property to his wife and daughter. No other persons are mentioned in the will. Briefly summarized, the first clause provides for the wife, the second for the daughter, while the third seeks *195to dispose of the residue, at all events, to one or the other. It seems quite clear that the testator had no other beneficiaries in mind. If an intestacy has arisen, it is certainly riot — as seems to be argued in behalf of the heirs-at-law — one contemplated or intended by the testator; it is, at best, an unintentional omission, to dispose of a part of his estate upon a certain contingency. Under such circumstances, it should obviously be the court’s endeavor to so construe the residuary clause, if consonant with "rules of law, to prevent such unintentional intestacy.

Underlying the intention to give to wife and daughter his entire estate, there is the primary purpose to provide for the former at all hazards. The striking distinction in the forms of the first and second bequests points to some difference of intention operating in the testator’s mind.

Though the effect of each bequest is to create a trust fund, the first follows in order to effectuate what is practically the gift of an annuity of a definite sum, while the second is a specific devise in trust. Why the difference? The testator desired, before providing for anybody else, and without regard to how much of his property might be left over thereafter, to give to his wife absolutely the sum of $10,000 in gold per annum. This does not, in terms, or by implication, exclude further gifts to her. The language is: “I give and bequeath to my beloved wife Josephine Louisa Newcomb an annual income of ten thousand dollars per annum in gold or its equivalent, *sufficient of my estate to be ■set aside and invested in good securities the income of which will net ten thousand dollars in gold per annum.”*It appears from the record that gold in 1866, when the will was made, was still at a very considerable premium, and it was thus quite uncertain what portion of the testator’s estate, valued at about $514,000, would have to be set aside in order to realize sufficient to provide for the annuity in gold. This may explain the primary provision of the will. The second clause, making the devise in trust for the benefit of the daughter, begins: “ after providing for the above,” 60 that the amount of, and, under conceivable circumstances, any, devise to the trustees was dependent on a sufficient surplus of securities, after setting aside enough to insure the annuity to the widow. While it was not to be expected that the devise would, fail, yet its foam "is a clear indication of the desire to provide a substantial income to the wife before all else.

*196Beyond these two clauses, the will contains only alternative provisions seeking to leave the balance of the property, including the *corpora*of the several trust funds, to wife or daughter.

Before taking up the residuary clause, two features of the first clause are to be considered. In the first place, the gift is one of personal property and, so far as there is any remainder, it would, according to settled principles, not descend to the heirs, hut to the personal representatives, or fall into a general residuary clause, provided such a one was contained in the will. Secondly, there is in this first clause no gift or bequest of the title to the securities. There is the absolute gift of an annual sum, and then a direction that sufficient property be set aside to produce that sum. Neither by expression or implication is the title to the securities, which are the foundation of the fund, taken out of the testator. There is the direction or the power to set them “aside,” but, in this clause at least, nothing is done with them when they shall have accomplished that purpose. The title remained undisposed of, and, had the will consisted hut of that clause, it would have followed that Warren Newcomb had died intestate as to the remainder in the fund, and that it would have had to he distributed according to the Statute of Distributions. It is perfectly clear that no disposition of the title was made.

Now, what is the language of the residuary clause? “ After providing for all the previously-named bequests I give and devise to my dear wife Josephine Louisa Newcomb all the residue of my estate absolutely.” The residue includes everything which has not been effectually disposed of in other clauses of the will; that of which disposition has not been attempted is as much a part of it, as that which has not been disposed with proper effect, as lapsed and void legacies. Morton v. Woodbury, 153 N. Y. 247; Reynolds v. Kortright, 18 Beav. 417. All reversionary interests are included, whether known or unknown, immediate, contingent or remote. Floyd v. Carow, 88 N. Y. 569. It is quite immaterial what meaning we give to the words, “ after providing,” whether restrictive or descriptive. Granted that they exclude what has been given before, even to the extent that, in the event of failure or lapse, the gift would not fall in the residuary clause (Stephenson v. Ontario Orphan Asylum, 27 Hun, 380), it is clear that that which has not been given cannot lapse, but is necessarily just that on which the residuary clause fastens. Though the securities have *197been set aside to produce the income, a property right remains in their ultimate disposition, and this falls into the residue. The use of the words *“*all ” and *“*absolutely,” in connection with the word “ residue,” although quite unnecessary, so far as enlarging the legal limits of the residuary fund, show how thoroughly it was the testator’s intention to have all the balance of his estate go to Ms widow.

I cannot follow the argument that the residuary clause is merely a partial one. Three propositions are argued. First, that there was an actual bequest in remainder in this fund to- the daughter, contingent upon her surviving her mother. There can be no question as to this. Nor as to the second proposition, if it is limited to the statement that there is no specific bequest *in terms*of this estate ini remainder to .anyone in case the daughter did not survive the mother. The tMrd, however, that the residuary bequest to the wife is expressly limited so .as to exclude this estate in remainder, is, to my mind, based on an erroneous construction, both of the testator’s intention and of the words of alleged limitation at the beginning of the third clause. In the first place, tMs is not a case of a lapsed or void legacy, so that the words of alleged limitation could circumscribe the residuary clause and prevent additions thereto. This was so in Stephenson v. Ontario Orphan Asylum, *supra,*relied on by the heirs-at-law. There the gift in the residuary clause was so specifically limited to what might remain, after providing for certain absolute legacies, that it would have enlarged the testator’s intention to have included therein a lapsed legacy. In this case, however, the residuary clause seizes, *in the first instance,*on the very remainder in question. The rule is settled that, where the residuary bequest is not circumscribed by clear expression, in the instrument, and the title of the residuary legatee is not narrowed by special words of unmistakable import, he will take whatever may fall into the residue," whether by lapse, invalid disposition or other accident. Riker v. Cornwell, 113 N. Y. 115, 127. In the case just cited, the words, *“*after payment of all the legacies and carrying out all the trusts and provisions made,” etc., preceding a residuary bequest, were held to be merely words of description, and not of exclusion. So, in Carter v. Board of Education, 144 N. Y. 621, where, after four specific bequests, the will directed the executors to divide whatsoever moneys might remain, *“*after payment of the foregoing *198bequests,” between certain-named beneficiaries, and two specific bequests were invalid, the court construed the words “ after payment ” as descriptive merely, and not intended to confine the residue. In the Matter of the Accounting of Benson, 96 N. Y. 499, cited by the heirs-at-law, this language occurs: “ The testator may, by the terms of the bequest, narrow the title of the residuary legatees, as where it appears to be his *intention*that the residuary legatee shall have only what remains *after the payment of legacies;*and he may so circumscribe and confine the residue as that the residuary legatee will be a specific legatee, and then he will not be entitled to any benefit accruing from lapses unless what shall have lapsed constitute a part of the particular residue.”

It is to be observed, with regard to this *dictum,*referring to lapsed legacies, 'and not to property undisposed of, that the words *“*after the payment ” are not used, specifically, to indicate what words would limit the residue, but as expressive of the intention as disclosed by the entire scheme of the will. Thus Judge Earl’s language, in the Benson case, in reference to this phraseology, was explained in Carter v. Board of Education, *supra,*where Gray, J., said that the language is to be taken, “not as laying down an absolute rule that a residuary clause is necessarily circumscribed by the insertion of such words; but as suggesting that they might evidence an intention on the part of the testator that the residue is to be confined to so much only as would remain after deducting from the estate the aggregate amount of all previous bequests ” (at p. 624). In any event, the language of the will in the Benson case was that the residuary legatee should “ have only what *remains*after the payment of legacies,”. and what remained in the case before me is the very remainder in dispute, and, as I have already said, the residuary clause seizes upon that, whatever construction we give to the language of the clause.

I find, in the interpretation which gives this remainder to the widow, no contravention of any rule of law or of any statute. The question remains simply one of intent, as gleaned from, the entire testamentary disposition, not one derived from the use of particular words and phrases which, in a different will and in a different context, might aid, and not defeat, an unmistakable purpose of the testator. Reduced to its lowest terms, the argument of the heiru-at-law amount simply to this: Because, in the latter part of *199the third article, there is a specific gift of the remainder to the daughter, in the event of her surviving her mother, while there is no specific mention of the remainder in making the widow a beneficiary, therefore there is disclosed an intention not to dispose of the remainder in the event of the daughter’s prior decease. It seems to me that it is quite erroneous to argue that this discloses any intent whatsoever, or that the testator recognized and defined a distinction between the remainder in fee, under article one, and the residue mentioned in article three; or any of the similar propositions advanced to support a contrary interpretation to the one here adopted. Were the heirs-at-law to prevail in this branch of the case, it would not he on account of any intention disclosed in their favor, but owing to a clear omission to express or indicate an intention existing as to a specific portion of the estate. I am-satisfied that this case falls within such authorities as Lamb v. Lamb, *supra;*Floyd v. Carow, *supra;*Wager v. Wager, 96 N. Y. 164; Carter v. Board of Education, *supra;*Matter of Miner, 146 N. Y. 121; Meeks v. Meeks, *supra.*Under the circumstances of this case, in the absence of words manifestly excluding the remainder from the operation of the residuary clause, it embraces, consistently with the testator’s intention, that of which no disposition had theretofore been made. It may be well, in conclusion on this branch, to refer to the recent case of Meeks v. Meeks. There, after the bequest of a life estate, to the testator’s widow, of the income of a trust fund set apart for that purpose, a residuary disposition was made of all “ excepting that part herein-before appropriated.” The same contention was made here: That the remainder over, after the life estate, passed to the heirs-at-law, hut O’Brien, J.,.writing for an undivided court, said: “In making final disposition of his residuary estate * * * it-is obvious that the testator intended to dispose of all his property as ■therein indicated, except the life interests which had been carved out of the estate by the antecedent provisions of the will, and, hence, the words ‘ excepting that part hereinbefore appropriated ’ apply to the life interest of the widow only and not to the *corpus*•of the fund. We should, if possible, give to the language of the testator a construction which will render the instrument operative rather than invalid, and an interpretation that will produce intestacy as to any part of the estate is to be avoided if possible ” {at p. Yl).

*200I am, therefore, of the opinion that the remainder in the fund, under article one of the will, vests in the widow, by virtue of the general residuary clause in her favor.

On the second branch of this case, that is, the right of Mrs. Hewcomb to terminate the trust at this time, under the provisions of the statutes cited *supra,*I feel myself constrained to follow the decision in- Oviatt v. Hopkins, 20 App. Div. 168. In the absence of an adjudication by the Appellate Division of this department, I must regard that case as controlling, even though I recognize that, despite the peculiar provisions of our statutes, as to the estate vested in the trustee, there is no property right in Mm, in the true sense of the term. His beneficial interest would seem to be limited to Ms right to compensation for services; and it seems, perhaps, like straining construction to say, even as to trusts created before the passage of the act, that the provision in question permits the taking of property without due process of law. Trusts created after the passage of the act have been sustained. Snedeker v. Congdon, 41 App. Div. 433; Mills v. Mills, 50 id. 221. As to those theretofore created, I am compelled to follow the Oviatt case, until a contrary adjudication is rendered in this department. I, therefore, hold that the .trust- is not now terminable.

Submit decree in accordance with the conclusions expressed in this opiMon.

Ordered accordingly.