Central Trust Co. v. Egleston

47 Misc. 693, 98 N.Y.S. 1055

Opinion

Clarke, J.

*

Upon examination of the questions presented upon settlement of the decree I am of opinion that the contributions of £100 and £200 “ to maintain the home ” are to be made by each son and not by them collectively. A construction is also sought of the following clause: “For the first year and one-half after my death (if any child is under age) I desire that the Central Trust Company advance to my wife in the ratio of my previous expenditure from five thousand dollars to about nine thousand dollars, so as to give time to adjust family affairs — this to he for the benefit of my wife and sons, not one, but all — but if all of the children are of age (twenty-one) then for one year, not one year and one-half ($5,000 to $9,000).” The children are under age, so the provision is for one and one-half year. The testator has used precatory words directed to the trustee. In Phillips v. Phillips, 112 N. Y. 197, 205, Judge Finch says: “The primary question in every case is the intention of the testator, and whether in the use of precatory words he meant merely to advise or influence the discretion of the devisee or himself to control or direct the disposition intended. In such a case we must look at the whole will, so far as it bears upon the inquiry, and the use of the words, 11 wish ’ or ‘ I desire ’ is by no means conclusive. They serve to raise the question, but not necessary to decide it.” In view of the general scheme of the will, the precatory words are meant as a direction to the trustee. The amount from $5,000 to $9,000 is to be paid out in the same way as testator himself previously made expenditure for the family and the “ ratio ” or proportions of the sum and at what particular time to be paid is left to the discretion of the trustee, but payments between $5,000 and $9,000 are to be made. Such construction is in.accord with the general scheme. The wife is to have for the first year and one-half, “ while the estate is provided for, two thousand dollars per annum, and when the estate is settled after the above time four thousand dollars each year for life.” After the settlement of the estate each of the three sons is to have $3,000 instead of $2,000 a year — so that the sum of $5,000 in additional income is added to the incomes of the beneficiaries after settlement of the estate. I, therefore, conclude that the advance of from $5,000 to $9,000 is in addition to the separate provisions made for the wife and sons during the settlement of the estate. • The testator intended that during such settlement the family should have funds wherewith to continue in the same circumstances as his previous expenditures had provided. The trustee is “ to advance from five thousand dollars to about nine thousand dollars.” It is not stated from what funds the advance is to be made. The sums to be advanced are not expressly or by fair implication charged against the annuity for the wife nor against the annuities or accumulations for the sons. In the absence of express designation, and it not appearing from the will as a whole that there was any other intention, the advances are not to be charged against any of the specific beneficial interests elsewhere provided, but the word “ advance ” is equivalent to the word “ pay,” and th# payment must be made from the funds in the trustee’s hands. The provision is for “ my wife and sons, not one, but all.” During the first year and one-half allowed by testator for settlement of the estate the trustee is to pay from $5,000 to $9,000 out of the principal in its hands as a legacy to the widow, who is charged with the duty of applying the same for the benefit of herself and the three sons.

Decision signed. Submit judgment on July thirty-first.

Upon signing the decision made herein the judge added the above to bis opinion reported ante p. 475.