#### In the Matter of the Estate of W. Beran Wolfe, Deceased.

Surrogate’s Court, New York County,

August 14, 1937.

*505
      *Arthur 0. Asher,*for the trustee.

*Nathan Schwartz,*for the executor.

*Joseph Schron,*special guardian of infant, trust beneficiary.

Delehanty, S.

The fifth paragraph of decedent’s will provides: “ I give, devise and bequeath unto my father, Dr. Alexander S. Wolf, of 5813 Enright Avenue, St. Louis, Missouri, all income from book rights and royalties, in trust nevertheless, to be invested and reinvested, and to apply the income of as much of the principal as the said trustee in his opinion he shall deem necessary, for the proper education of my brother, Daniel B. Wolf.”

The eighth paragraph makes specific bequests to the widow and gives her also *“*all the rest, residue and remainder of my property not hereinbefore specifically devised, of whatsoever kind, be it real, personal or mixed, and wheresoever situate, for her own absolute use and behoof forever. ’ ’

A construction is sought to determine the duration of the trust created by the fifth paragraph and the manner whereby the remainder interest therein is to pass. The special guardian takes the position that the remainder passes as intestate property. This is clearly erroneous. The remainder here is property not *“*specifically devised ” and by the express language of the residuary clause passes to the widow as residuary legatee. *(Matter of Kohler,*231 N. Y. 353, 374; *Matter of Cole,*235 id. 48, 56.)

Less simple is the problem respecting the duration of the trust. To solve it the court is required to say what the testator, an author, translator, psychiatrist and physician, meant by *“*proper education.” Is education a quality or a process? Like the attainment of one’s majority is it something accomplished at a given moment in time? Is it something proved to exist by possession of an earned diploma signifying that one has been awarded a degree in arts or the sciences, in law or medicine, in philosophy or philology?

In the synthesis which is education both ethic and science find place. How does this synthesis come into existence? Once it was believed that the mind of the child was a receptacle which could be filled with knowledge and operative moral principle simply through constant repetition by teachers. The discipline of formal study and instruction is a part of education but so also are all the experiences of fife, the aspects of nature, the humdrum and the unexpected happenings of a social existence among one’s fellows. All contribute to the unfolding and the maturing of the mind and character of man. *“*Education is a broad and comprehensive term. It has been defined as ‘ the process of developing and training the powers and capabilities of human beings.’ To educate, *506according to one of Webster’s definitions is ' to prepare and fit for any calling or business, or for activity and usefulness in life. ’ Education "may be particularly directed to either the mental, moral, or physical powers and faculties, but in its broadest and best sense it relates to them all.” *(Mt. Hermon Boys’ School*v. *Gill,*145 Mass. 139, 146; 13 N. E. 354.)

Gradually for an educated man the isolation of experienced occurrences fades out. Events begin to imply one another. There is a sharper and sharper appreciation of the context within which experience happens; of the remoter consequences involved in action. A special power of discernment evolves. When this power enables one to distinguish the true from the false in cases where a plausible argument may be made as well for the wrong as for the right we may call it (adopting the phrase of Newman) the illative sense. It is characteristic of everybody of specialized training that in the field of his specialization he has developed this illative sense. Though some are not as well endowed with it as others, it must be present to some degree if an education has begun to come within sight of its completion.

The illative sense in both practical and moral life is the mark of a free and educated man. It enables him to deal efficiently with the problems posed by his social and material environments. Since for its perfection it is needful that man should have both knowledge in abundance and maturity of character, it may be said that the synthesis which is education completes itself *pari passu*with the perfection of this power of discernment. To reach this goal there is needed more than schooling; which is a principal reason for declining to identify schooling and education. Experience beyond the school and experiment in every direction are quite as necessary as the formal instruction of the class room. How long instruction, experience and experiment must be continued turns on the individual under consideration. Plato attributes to Solon, the Lawgiver, the saying already proverbial in Plato’s time: “ I grow old ever learning many things.” Lipsius quotes the Latin version, *“ Assidue addiscens ad senium venio.”*The aged Seneca in his Epistles elaborates on the proverb: “ *Tam diu discendum est, quam diu nescias, et, si proverbio credimus, quam diu vivas. Nec ulli hoc rei magis convenit, quam huic; tarn diu discendum est quemadmodum vivas, quam diu vivis. Ego tamen hie aliquid et doceo. Quseris quid doceamf Etiam seni esse discendum.”*

In Prof. Gummere’s non-literal translation the Latin says: “ You should keep learning as long as you are ignorant,— even to the end of your life, if there is anything in the proverb. And the proverb suits the present case as well as any: ‘ As long as you live, keep learning how to live.’ For all that, there is also some*507thing which I can teach in that school. You ask, do you, what I can teach? That even an old man should keep learning.” (2 Seneca Ad Lucilium Epistulse Morales, 148 — Loeb’s Classical Library.)

Perhaps this brother of deceased has the spark of genius. If so his education will never end in this life. As he learns, deeper and wider his insight will extend but his curiosity (the mark of a student) "will never find complete satisfaction. He will serve to illustrate a paradox: the most completely educated of men are also the least completely educated. Such men outgrow their early teachers but they continue the educational process by turning to the instructions afforded by the union of fact and imagination and ever show an inexhaustible docility in face of this greatest of all teaching combinations. It is only the clod who may speak of his education in the past tense. By so doing he confesses that he has surrendered his claim to curiosity (if indeed he ever had any) and is ready to settle with life if only it will make him fat, numb and secure.

What Kind of man this beneficiary will become is beyond knowing by the court. The will evidences that the testator regarded him with affection. As a scholarly man himself he hoped that this younger brother would develop unmistakably as a man of quality. He doubtless foresaw that should this take place the process of Ms education would be endless. The testator, therefore, intended tMs fund to be available even to its exhaustion for the entire life of the beneficiary. What remains at Ms death, if anything, will go to the residuary legatee.

What did the testator mean by “ all income from book rights and royalties? *’ ’*Only the proceeds of volumes bound in book form in covers? The court does not give so narrow an interpretation to the pMase. All moneys derived from the writings of deceased and their publication or sale in whatever form go into the trust.

The objections are disposed of as follows: The objection respecting the premium obligation of the trustee was withdrawn at the hearing. The parties reached an agreement wMch the court approved as to the amounts payable to the trustee. The court holds that the executor is entitled to commissions on the moneys collected since the executor was required to take action concermng these funds and so is entitled to the usual commission thereon. The questions as to construction have been disposed of by the earlier portions of tMs decision. The objections raise no other question requiring decision. With or prior to the decree there should be submitted an order consolidating the construction proceeding with the accounting proceeding and the decree to be submitted should be entitled in the proceeding as so consolidated.

Submit, on notice, decree construing the will and settling the account accordingly.