Matter of Kellogg , 187 N.Y. 355 ( 1907 )

It is conceded that the fourth paragraph of the will appointing testamentary guardians is void in view of the provisions of the Domestic Relations Law, section 51, which reads as follows: "A married woman is a joint guardian of her children with her husband, with equal powers, rights and duties in regard to them. Upon the death of either father or mother, the surviving parent, whether of full age or a minor, of a child likely to be born, or of any living child, under the age of twenty-one years and unmarried, may, by deed or last will, duly executed, dispose of the custody and tuition of such child during its minority or for any less time, to any person or persons. Either the father or mother may in the lifetime of them both, by last will duly executed, appoint the other the guardian of the person and property of such child, during its minority. A person appointed guardian in pursuance to this section shall not exercise the power or authority thereof unless such will is admitted to probate, or such deed executed and recorded as provided by section twenty-eight hundred and fifty-one of the Code of Civil Procedure."

The history of the legislation in this state resulting in this section quoted is interesting as disclosing the intention to further enlarge the rights of married women. The provisions of an ancient English statute were embodied in our Laws of 1787 (Chap. 47, § 11), which were afterwards incorporated into the Revised Statutes. This statute authorized a father to dispose of the custody and tuition of his infant children, the wife having no rights in the premises.

By the Laws of 1862 (Chap. 172) the existing statute was amended so as to require the consent of the mother to a testamentary appointment by the father, but this legislation in favor of the wife was repealed by the Laws of 1871 (Chap. 32). Then followed Laws of 1893 (Chap. 175); Laws of 1896 (Chap. 272), and the revision of the whole subject by the Domestic Relations Law (§ 51 and following).

The judgments of the Surrogate's Court and the Appellate Division declaring the fourth paragraph of the will void do not rest on the concession of the appellants that such is the fact, but upon the face of the will and the plain reading of the statute quoted. It is the contention of the appellants that notwithstanding the will and the statute there can be spelled out of the former the intention of the testator to create a power in trust which will vest the property passing under the will in the executors as trustees, thereby conferring upon them the absolute control of all property to which the three infant children of the testator are entitled and stripping the widow of every vestige of the rights and powers conferred upon her by statute, as the guardian of her children; it follows that such will be the effect, for in depriving her of the control of the property it practically removes the infants from her personal supervision to a very great extent. It leaves her vested with a barren, worthless right.

It would have been, of course, competent for the testator to have left his property to his infant children in trust during their minorities and named such trustees as he saw fit. In that event it would have been incumbent upon him to have indicated the scope and purposes of the trust and defined explicitly the powers of the trustees. This he did not do.

We come back then, first, to the will and the statute and their effect upon the theory of a power in trust; and, second, to the decisions on which the assumption of such a power rests. The statute (Domestic Relations Law, section 51) in its opening sentence creates a married woman the "joint guardian of her children with the husband, with equal powers, rights and duties with regard to them." Either dying, the survivor may by deed or will "dispose of the custody and tuition of such child, during its minority, or any less time, to any person or persons." Then follows a provision that in the lifetime of both either may appoint the other the guardian of the person and property of the child. The legislature has thus gone far towards completing the emancipation of the married woman from the bondage of the common law; the statutes relating to married women from 1848 until a recent date have established in them the right to acquire, hold and dispose of property, and the legislation we are now considering has made them the equals of their husbands in the custody, tuition and property of their children.

An examination of the will discloses the fact that the testator, regardless of the statute and the rights it confers upon a wife, did precisely what it prohibited, and appointed separate male guardians of the persons and the estates of his three minor children — two of them under fourteen years of age. The only direction he gives to the guardians of the estate is the following: "I direct that all funds and securities belonging to each of my children shall be received, held and paid out by them as guardians." As to the guardians of the persons, no direction or suggestion is given.

The will confers upon the executors (who are also named as guardians of the estates of the infants) power to sell and convey real estate and personal property, and to continue or wind up the business of the testator. This record does not disclose why the testator ignored his wife in making his will, nor is it of the least importance, for the question now to be decided is of great public moment. Is a testator who, by his will and the appointment of guardians therein, finds himself barred by the statute in his attempt to deprive his wife of the rights and powers conferred upon her by that statute, entitled to invoke a principle of equity and have his will in that regard turned into a power in trust? To ask the question is to answer it. No case has been cited where such a practice has been permitted under the statute as it now exists. It is an anomaly to appeal to equitable principles under such circumstances. The testator has given his estate to his infant children, and to that extent his will can be sustained, but he ought not to be permitted to deprive the widow of her statutory rights under a mere legal fiction he is in no position to invoke.

The cases cited in support of the appellants' contention are so different in their facts as to be, in our opinion, of no authority on this appeal. In the case of Blake v. Leigh (Ambler's Repts. part 1, 306), decided in 1756, Lord HARDWICKE, Chancellor, said: "The grandfather had no power to appoint a guardian of his grandson, it being a right vested in the father; but any one can give his estate on what condition he pleases; and the father has in this case submitted to the will. There are instances where grandfather has given his estate to grandchild, and appointed guardians of his estate and person; and if the father did not submit to the will, the court has made the father's opposition work a forfeiture of his son's estate."

In Fullerton v. Jackson (5 Johns. Ch. 278) a grandfather devised to his grandchild certain real estate, and directed that the rents and profits be applied by his executors to the education of such grandchild during his minority. He also directed that his executors be his guardians and direct his bringing up and education as in their judgment appeared proper. The surrogate had appointed a guardian of the infant without regard to this provision in the will. Chancellor KENT said: "In the present case the testator intended that the rents and profits of the land devised during the minority of the grandson, should be appropriated by the executors toward his education. He had a right to annex that condition to the gift; and I do not see that I am required by any principle to call those rents and profits out of the hands of the executors and place them under the discretion of the guardian. The defendants have no control of the infant, but those rents and profits must be left to their control; and if the guardian will not allow them to appropriate the same in such manner as they shall deem best towards the education of the infant, he must be educated with other resources; and the defendants will be responsible to the infant when he comes of age for those rents and profits with interest thereon."

In this case the question of a power in trust is not involved.

In Post v. Hover (33 N.Y. 593) a grandfather devised certain real estate to three grandchildren and directed one John Hover, his son, to take charge of and have the management of the infants' estate during their minority and support them and their mother; he also constituted his son John guardian of the three grandchildren and one of the executors of his will. One of the principal questions in the case was whether John Hover took any estate in the lands devised to the grandchildren. It was argued that if John Hover did take an estate or interest in these lands it would create an unlawful suspension of the power of alienation. DENIO, Ch. J., said (pp. 599-600): "But I am of opinion that John Hover did not, by the terms of this will, take any estate in the part of the homestead devised for the benefit of the grandchildren. There are no words importing a devise to him and he is not called a trustee. Ample power of management and a right to receive the rents and profits are indeed given, but these duties could very well be executed under a trust power. So far as the grandchildren, who are the principal beneficiaries, are concerned, they might be performed by a general guardian. * * * A guardian, as is well known, has no estate in the lands of his ward, but only a power of management. A grandfather, it is true, has no power to appoint a guardian for his grandchildren by last will. (Fullerton v. Jackson, 5 Johns. Ch. 278.) This testator thought otherwise, and by assuming to do so he may be supposed to indicate the kind of authority which he intended to commit to his son John. He intended to confer such a charge of and power over the estate as a guardian may rightfully exercise over the lands of his ward. This repels the idea of the devise of a legal title nearly as strongly as if he had possessed the power which he attempted to exercise."

It is difficult to see what application this case has to the one at bar. We have here an executor who has conferred upon him, according to the judgment of the court, "such a charge of and power over the estate as a guardian may rightfully exercise over the lands of his ward." The learned judge seems to have used the reference to a trust power by way of illustration. He said: "Ample powers of management and a right to receive the rents and profits are indeed given, but these duties could very well be executed under a trust power." Assuming, however, that the last two cases are to be deemed authority for the proposition that interested parties may appeal to the doctrine of a power in trust in order to cure an otherwise invalid provision of the will, we are, nevertheless, of opinion, for reasons already stated, that they have no application to the situation now presented.

In this connection the respondents have called attention to the case of Brigham v. Wheeler (49 Mass. 127). A testator, by his will, gave real and personal property to the children of his nephew and their heirs and assigns forever, and appointed their father to be their guardian, without giving bonds, "for the purpose of receiving and managing said property so given." It was held that said appointment of a guardian was void, for want of authority in the testator, and that the will could not be so construed as to vest an estate in trust in the father of the children.

In view of the peculiar facts in the case at bar and the statute cited the decisions of the courts of other states are not in point.

The questions in this case were raised by the widow in the proceedings instituted by the executors under the will to obtain their final discharge. In that proceeding the widow appeared as the general guardian of the person and estate of her daughter over fourteen years of age, and the temporary guardian of the persons and estates of her two daughters under fourteen years of age. She filed objections to the account of the executors and secured a decree declaring the fourth paragraph of the will null and void, and directing payment to her of the sum or $32,381.23 and accrued interest thereon, as the guardian of the persons and estates of the infants. This decree has been affirmed by the Appellate Division.

The judgment of the Appellate Division affirming the decree of the Surrogate's Court of Erie county should be affirmed, with costs.

HAIGHT, VANN and WILLARD BARTLETT, JJ., concur with CULLEN, Ch. J.; WERNER, J., concurs with EDWARD T. BARTLETT, J.; HISCOCK, J., not sitting.

Ordered accordingly.