76

over allowed by section 42 of the Real Property Law or for any shorter period. This is a very beneficial provision of the statute, and if carefully employed may be advantageous to families.

A Devise to Trustees for Two Lives on Trusts to Receive and Pay over Subject to Vested Life Estates Does Not Create a Perpetuity. A devise of testator's estate to trustees for two specified lives in being, to receive and apply the income, is never invalid because the estate is subject to an outstanding term, or a vested life estate created by the same will."

79

Devise on Trusts Subject to Annuities or a Rent Charge. A devise is not void because an estate so limited on trusts for two lives is subject to a rent charge or to an annuity.78 A trust to pay an annuity is now an express trust and such an annuity when an express trust is not assignable. But the devise of an estate to trustees, subject to a common-law annuity or to a charge on land or on a fund, is within the reason of Bailey v. Bailey,80 and is independent of the trust. It does not affect the validity of the trust limitation itself or involve the rule against perpetuities (now made applicable by statute to all limitations on trusts for nonalienation), unless the trust itself is clearly one to pay annuities.$1

Construction of Last Wills and Testaments. Having briefly noticed the more important limitations of property usually contained in wills now in use in this State, we may next notice some of the rules applied in the construction of wills. In construing wills, a different principle prevails from that which is applicable

76 Farmers' Loan & Trust Co. v. Kip, 192 N. Y. at p. 285.

77 Bailey v. Bailey, 97 N. Y. 460; Corse v. Chapman, 153 id. 466; Snedecor v. Congdon, 41 App. Div. 433; Jessup v. Pringle Memorial Home, 27 Misc. 427, 433; Kessler v. Friede, 29 Misc. 187, 191; Matter of Hurlbut, 51 id. 263. Cf. City of Brooklyn v. Seaman, 30 id. 507, to the contrary.

78 Hobson v. Hale, 95 N. Y. 588, 612; Matter of Collins, 144 id. 522; Buchanan v. Little, 154 id. 147.

79 §§ 96, 103, Real Prop. Law; Cochrane v. Schell, 140 N. Y. 516. 80 Bailey v. Bailey, 97 N. Y. 460; Corse v. Chapman, 153 id. 466.

81 Booth v. Baptist Church, 126 N. Y. 215, 246; Buchanan v. Little, 154 id. 147; Herzog v. Title Guarantee & Trust Co., 177 id. 86, 100; People's Trust Co. v. Flynn, 188 id. 385, 392; Wells v. Squires, 117 App. Div. 502, 504.

83

in the construction of other instruments, and courts are permitted to look beyond mere phraseology and gather the intention from the whole will.82 The cardinal rule in the construction of wills is, that the intention of the testator is to be accurately ascertained and then given effect to, if possible. Indeed, the testator's intention is sometimes called the "polar star" of construction.84 But this very general statement, like most figurative expressions, is at best vague, and in ascertaining testator's intention it is often necessary to have recourse to settled authority, expressed in the more exact and fundamental rules which govern judicial or scientific construction of the testator's language (hermeneutics); for, testator's intention must, if possible, be ascertained from his own language contained in his last will.

The intent to be discovered is not whether the testator intended to make a valid disposition of his estate, but what provisions he in fact intended to make. When that is found, it is for the court to determine whether such intended provisions are valid or otherwise.85

The intention of the testator is not a question of law, as often said, but a pure question of fact. That it is a question of fact for a judge does not make it less a question of fact.86 But in determining the fact, the judge is subject to certain settled rules laid down by the courts, and he can not proceed according to some arbitrary standard of his own. The importance of having reference. to established rules of construction in any question of doubt or difficulty on the meaning of a will is apparent.

82 Olmsted v. Harvey, 1 Barb. 102; affd., 1 N. Y. 483.

83 Covenhoven v. Shuler, 2 Paige, 122; Jackson v. Brown, 13 Wend. 437, 440; Kent v. Kent, 99 App. Div. 112, 117; Matter of Delaney, 133 id. 409, 411; Colton v. Fox, 67 N. Y. 348, 351; Phillips v. Daviss, 92 id. 199, 204; Tilden v. Green, 130 id. 29; Central Trust Co. v. Egleston, 185 id. 23.

84 Myers v. Eddy, 47 Barb. 263; Lynch v. Pendergast, 67 id. 501;

Howland V. Union Theological Seminary, 5 N. Y. 193, 224; Cushman v. Horton, 59 id. 149, 153; Putnam v. Lincoln Safe Deposit Co., 66 App. Div. 136, 144.

85 Colton v. Fox, 67 N. Y. 348, 351; Herzog v. Title Guarantee & Trust Co., 177 id. 86, 91; Matter of Trumble, 137 App. Div. 483, 490.

86 Thayer, Prelim. Treatise on Evidence, 202, 203, 411; Herzog v. Title Guarantee & Trust Co., 177 N. Y. at p. 91.

88

In collecting the intention of testators from the phraseology of the written will, courts are bound by precedent and authorities in point, and upon identity of language they are to be bound by settied judicial authority, and can not allow conjectural interpretation to usurp the place of judicial exposition. The rules of construction employed by courts in regard to wills have been collected by writers on jurisprudence, notably Blackstone, Jarman,89 Ram,90 and Sir James Wigram, and most subsequent judicial expositions have been only logical extensions or commentaries on these rules. The decisions now are, on the whole, complete enough to include the phraseology employed in most wills, despite the trite maxim "that no will has a brother." Special rules, however, never subordinate the fundamental canon that the testator's intention governs the construction of his will. It is only when the testator's language is ambiguous, or fails to express his intention, that most technical rules obtain."2

As applicable to the construction of the language of testators, courts adopt those reasonable rules which are generally called " rules of construction." 93 No rule, however, is without its exceptions, or rather each under certain circumstances gives way in application to some higher or more general rule. A rule of construction is not a master and always to dominate, but a mere servant of justice, and when particular justice requires that it shall not be applied, it will not be applied. Thus it is always the intention of the testator, and not the rule, which is dominant, at least whenever the rule fails to accord with the more obvious intention.94 In these liberal con

87 Myers v. Eddy, 47 Barb. 263; Howland v. Union Theological Seminary, 3 Sandf. 82, 110, III.

88 2 Black. Comm., chap. 23. 89 2 Jarman on Wills, chap. 53. 90 Ram, Treatise on the Exposition of Wills.

91 Wigram on Extrinsic Evidence, in aid of the Interpretation of Wills (3d ed., London 1840).

92 Ritch v. Hawxhurst, 114 N. Y. 512; Wadsworth v. Murray, 161 id.

274; Bassett v. Wells, 56 Misc. 81, 85.

93 Chrystie v. Phyfe, 19 N. Y. at p.

348.

94 Matter of James, 146 N. Y. at pp. 100, 101; Schmeig v. Kochersberger, 18 Misc. 617; Wilson V. Wilson, 120 App. Div. 581; Lasher v. Lasher, 13 Barb. 106; Ritch v. Hawxhurst, 114 N. Y. at p. 515; and see I Spence, Eq. Juris. 532.

clusions of the courts of this State, the criticism of Professor Thayer on the many narrow rules, applied or misapplied generally in the construction of wills, seems to have been wisely met or avoided in New York.95

Among the more important technical rules for construing wills are the celebrated seven rules formulated by Vice-Chancellor, Sir James Wigram. These rules, which long since received the express approval of the courts of this country, including the Supreme Court of the United States, are still frequently quoted, and they will therefore be presented here in extenso, together with such cases in New York as appear to support them, for the English edition contains only English cases. These Rules were originally formulated with reference to the inquiry of Sir James Wigram concerning," Under what restrictions is the admission of extrinsic evidence, in aid of the exposition of a will, consistent with the provisions of a statute, which makes a writing indispensable to the purpose for which the instrument was made?" 96 As the New York statute (like the English statute) requires wills to be in writing, Sir James Wigram's rules are applicable in this State, where they have obtained an extensive recognition. Professor Thayer and other writers have criticised Wigram's Rules, and assert that they are to some extent founded on a mistaken conception." But this does not prevent them from being very practical canons for the interpretation and construction of wills, and they are certainly authoritative, in so far as they are recognized by the courts of this State.

Wigram's Proposition I. A testator is always presumed to use the words in which he expresses himself, according to their strict and primary acceptation, unless, from the context of the will, it appears that he has used them in a dfferent sense, in which case the sense in which he thus appears to have used them, will be the sense in which they are to be construed.98

95 Thayer's Preliminary Treatise on Evidence at Common Law, chap. X.

96 Wigram on Extrinsic Evidence in aid of the Interpretation of Wills (3d ed., London 1840), 2; quoted, I Spence, Eq. Juris. 554.

97 Preliminary Treatise on the Law of Evidence, 404, 482, and Appendix C, ibid. 594, 595.

98 Cromer v. Pinckney, 3 Barb. Ch. 466, 475; Roosevelt v. Thurman, I Johns. Ch. 220; Mowatt v. Carow, 7 Paige, 328, 339; Matter of Hallet,

Wigram's Proposition II. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction, that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.99

Wigram's Proposition III. Where there is nothing in the context of a will, from which it is apparent that a testator used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with reference to these circumstances, they are capable.1

8 id. 375, 378; Hone v. Van Schaick, 3 N. Y. 538; S. c. below, 3 Barb. Ch. 488, affd., 3 Edw. 474; Sherwood v. Sherwood, 3 Bradf. 230; Howland v. Union Theological Seminary, 5 N. Y. 193, 224; Chrystie v. Phyfe, 19 id. at p. 348; Lytle v. Beveridge, 58 id. 592, 598; Cushman v. Horton, 59 id. 149, 153; Wylie v. Lockwood, 86 id. 291, 298; Matter of City of Rochester, 110 id. 159; Kernochan v. Whitney, 125 App. Div. 371. Cf. Thayer, Prelim. Treat. on Ev., 482, 483; Matter of Kear, 133 App. Div. 265.

99 Hone v. Van Schaick, 3 N. Y. 538, 541; Matter of Robinson, 57 Hun, 395; Baylies v. Hamilton, 36 App. Div. 133; Post v. Post, 47 Barb. 72; Champlin V. Champlin, I (Buff. Sup. Ct.) Sheldon,

355; Fosdick v. Delafield, 2 Redf. 392; Van Nostrand v. Moore, 52 N. Y. 12; Cushman v. Horton, 59 id. 149, 153; Johnson v. Brasington, 156 id. 181; N. Y. Life Ins. & Trust Co. v. Viele, 161 id. 11. Cf. Thayer, Prelim. Treatise on Evidence, 448; Matter of Kear, 133 App. Div. 265, 267.

1 De Kay v. Irving, 5 Den. 646; Burtis v. Doughty, 3 Bradf. 287; Wetmore v. Parker, 52 N. Y. 450, 464; Lytle v. Beveridge, 58 id. 592; Bliven v. Seymour, 88 id. 469, 476; Matter of Wells, 113 id. 396, 401; Lawton v. Corlies, 127 id. 100; Hillen v. Iselin, 144 id. 365, 375; Matter of Kear, 133 App. Div. 265; Matter of Delaney, 133 id. 409, 411. See Thayer, Preliminary Treatise on Evidence, 412.