Lottimer v. Blumenthal

61 How. Pr. 360

• Court: New York Supreme Court
• Decided: May 15, 1881
• Status: Published

Opinion

Van Vorst, J.

It is claimed on the behalf of the infant defendants, that the provisions made by the testator in the eighth clause of his will in behalf of his wife, in the event of her “ remarriage,” are so inconsistent with, as to be entirely revoked by the express directions and limitations contained in the tenth clause, which directs that upon her death or “ remarriage ” all the estate was to be divided between the children of the testator and then- issue. The ground upon which this conclusion is placed is, that where the provisions of a will are irreconcilably repugnant, the latter provision must prevail.

It is, doubtless, the rule in the construction of wills, that where two clauses or gifts are irreconcilable, so that they cannot possibly stand together, the clause or gift which is posterior in local position shall prevail, the subsequent words being considered to denote a subsequent intention (1 Jarman on Wills, p. 472 [5th Am. ed., Boston]). But the rule which sacrifices the former of several contradictory clauses is never applied but on a failure of every attempt to give to the whole will such a construction as will render every part effective (Idem, 475). Such reasonable construction should be given “ut res magis valeat guam pereat.” All parts of a will are to be taken together in ascertaining its meaning, and no part be rejected as inoperative, if the' whole can reasonably stand together (Norris agt. Beyea, 3 Ker., 283). And the rule above indicated —that the provision of a will which is posterior in position, is an indication of a subsequent intention, and must prevail to defeat anterior gifts — is inoperative when the general scope of the will leads to a contrary conclusion (Van Nostrand agt. Morse, 52 N. Y., 12). In this regal'd, as in all others, when construction is called for, the real intention of the testator is to be gathered from the whole will; and rather than that such intention should fail, inconsistent words may be rejected.

Should the construction of the tenth clause of the will which is urged upon the court by the learned counsel for the infant defendants prevail, or such effect as claimed by him be given to it—that the whole estate, upon the “ remarriage ” of the widow, is to be divided up between the testator’s children — it would defeat the clearly expressed intentions of the testator, both special and general, and the considerate provisions he had intelligently made for his sisters, nieces and wife, which were, by his express directions, to continue with respect to them severally as long as they should live, or at least should not terminate until her death. It would also break in upon and seriously disturb the consummation of other gifts and provisions carefully made, dependent, not upon the “ remarriage ” but the “ death ” of the wife, which it is not necessary here to enumerate. Such result could not, in construction be accepted, except absolutely necessary. But limiting the inquiry to one subject—the remarriage of his wife—it will be seen that this event had been intelligently considered by the testator. In the eighth clause of the will this contingency was contemplated and provided for in harmony with the other provisions of the will in her behalf and others’. By such remarriage his widow was not to be deprived of her proportion of the income of his estate; but, otherwise, on the happening of such event her share was to be readjusted and she was to receive it during her life, for her sole and separate use, free from any debts or control of her husband. If the provisions of the eighth clause are allowed to stand, the principal of the whole estate, out of which this income is derivable, cannot be divided up and given away to others until her death.

A full consideration of all the provisions of the will, and the contingency upon which — the death of his wife — other interests and rights are intentionally made to depend, in connection with the fact that the remarriage of his wife had been clearly contemplated by the testator, without disfavor, in the eighth clause of the will, and provision thereupon made in her favor based upon such fact, leads to the conclusion that the word “ remarriage ” occurring in the tenth clause of the will was inadvertently and unintentionally used by the testator as an event which would cut off rights in others, and hasten the division of his estate. If that word be dropped the whole will can be carried out, and the purposes of the testator effectuated as he clearly intended, and no interest will be sacrificed. The enjoyment of the principal, it is true, may be postponed until the death of Mrs. Blumenthal, but not ultimately defeated or impaired. Allowing this word to remain disturbs the well considered scheme in the testator’s mind, both general and special, when he executed his will. '

Words in a will are not to be expunged upon mere conjecture, but where they are irreconcilable with the general context they may be rejected, whatever their local position (Jarman on Wills, vol. 1, p. 480, and cases cited).

As a reasonably clear deduction that the word “ remarriage ” in the tenth clause was unintentionally, and through a mistake, used, appears from the direction that the division therein contemplated was to be made by the “ surviving executors and trustees.” This would seem to indicate that his wife, who was an “ executrix ” and trustee under the will, had died before the division was to be made. In previous portions of the will the testator had been careful to use the word “ executrix” in connection with the words “executors arid trustees” when duties were imposed, with respect to the management, care and appropriation of his estate. And this omission occurs in subsequent parts of the will with respect to the care and division of the estate, evidently based upon the fact of the death of his wife when the division contemplated by the tenth clause was directed to be made. I think it quite clear that the word “ executrix ” was in those instances dropped by the testator intentionally, for the reason that those things were only to be done after her death. •

The conclusion reached is that the word “ remarriage ” found in the tenth clause of the will, should be rejected as irreconcilable with the general scope of the will, and as in conflict with the expressed intentions of the testator, both general and special, as shown by the will itself; and judgment is ordered accordingly.